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Authored by: jesse on Sunday, June 10 2012 @ 07:06 PM EDT |
Thank you. [ Reply to This | # ]
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Authored by: jesse on Sunday, June 10 2012 @ 07:07 PM EDT |
Than you. [ Reply to This | # ]
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Authored by: jesse on Sunday, June 10 2012 @ 07:07 PM EDT |
Thank you [ Reply to This | # ]
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- How does Apple keep secrets so well? - Authored by: Anonymous on Sunday, June 10 2012 @ 08:26 PM EDT
- 'This is getting creepy' : PJ - Authored by: complex_number on Monday, June 11 2012 @ 01:48 AM EDT
- Explain it to me like I'm 11 - How flames flame - Authored by: Anonymous on Monday, June 11 2012 @ 03:56 AM EDT
- I'm a software developer and I'm here to party - Authored by: jbb on Monday, June 11 2012 @ 10:28 AM EDT
- ESR states: Why I think RMS is a fanatic, and why that matters. - Authored by: Anonymous on Monday, June 11 2012 @ 10:47 AM EDT
- What ESR thinks and why it matters - Authored by: FreeChief on Monday, June 11 2012 @ 11:34 AM EDT
- ESR states: Why I think RMS is a fanatic, and why that matters. - Authored by: Anonymous on Monday, June 11 2012 @ 12:05 PM EDT
- Typical reaction to genius - Authored by: jbb on Monday, June 11 2012 @ 12:19 PM EDT
- ESR states: Why I think RMS is a fanatic, and why that matters. - Authored by: tiger99 on Monday, June 11 2012 @ 01:08 PM EDT
- Winston Churchill's definition of a fanatic - Authored by: betajet on Monday, June 11 2012 @ 02:01 PM EDT
- ESR states: Why I think RMS is a fanatic, and why that matters. - Authored by: MadTom1999 on Tuesday, June 12 2012 @ 07:56 AM EDT
- +1 - Authored by: Anonymous on Wednesday, June 13 2012 @ 01:28 PM EDT
- ESR states: Why I think RMS is a fanatic, and why that matters. - Authored by: old joe on Sunday, June 17 2012 @ 06:26 AM EDT
- Samsung sues Australia's patent commissioner over Apple row - Authored by: tiger99 on Monday, June 11 2012 @ 12:55 PM EDT
- Courts, laws and the environment (way OT) - Authored by: sciamiko on Monday, June 11 2012 @ 02:05 PM EDT
- Android activations reach more than 900,000 per day - Authored by: Gringo_ on Monday, June 11 2012 @ 02:55 PM EDT
- Microsoft files emotion monitoring patent, will match ads with user’s moods - Authored by: JamesK on Monday, June 11 2012 @ 05:01 PM EDT
- that'll be fun - Authored by: Anonymous on Monday, June 11 2012 @ 06:42 PM EDT
- Nothing new here. - Authored by: Anonymous on Tuesday, June 12 2012 @ 06:07 AM EDT
- Gates Foundation supports mood bracelets - Authored by: Anonymous on Tuesday, June 12 2012 @ 12:49 AM EDT
- Websites to be forced to identify trolls under new measures - Authored by: tiger99 on Tuesday, June 12 2012 @ 07:50 AM EDT
- Apple ditches Google Maps software in latest iOS - Authored by: tiger99 on Tuesday, June 12 2012 @ 07:54 AM EDT
- Assume someone fires a cruise missile on you and there is a GPL component in the cruise missile. - Authored by: Anonymous on Tuesday, June 12 2012 @ 10:55 AM EDT
- Newegg: Installing Linux On Your Computer Is Basically The Same As Breaking It - Authored by: Anonymous on Tuesday, June 12 2012 @ 01:22 PM EDT
- UK reopens probe into Google's Street View data capture - Authored by: tiger99 on Tuesday, June 12 2012 @ 01:48 PM EDT
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Authored by: jesse on Sunday, June 10 2012 @ 07:08 PM EDT |
Thank you. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 07:16 PM EDT |
Here is an ideological argument.
Patents are bad. Patent is an artificial monopoly given by the government to a
specific individual or company and allows the use of government force to
maintain itself.
Artificial monopolies are bad. The idea that something is "good for the
public" or "bad for the public" relies on completely arbitrary
definition of "public" which does not exist. Members of the
"public" have the different ideas about what is good for them and what
is bad for them. There will never be a smart-godlike-man that can tell what is
"good for the public" and be right about it.
Patents are bad. [ Reply to This | # ]
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- Curing the Problem of Software Patents, by Michael Risch - Authored by: mrisch on Sunday, June 10 2012 @ 07:21 PM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: Anonymous on Sunday, June 10 2012 @ 08:56 PM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: Anonymous on Sunday, June 10 2012 @ 10:17 PM EDT
- Recall, if you would, the copyright clause in the constitution... - Authored by: Anonymous on Sunday, June 10 2012 @ 10:20 PM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: Anonymous on Monday, June 11 2012 @ 07:58 AM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: Anonymous on Monday, June 11 2012 @ 09:38 AM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: Anonymous on Monday, June 11 2012 @ 01:20 PM EDT
- Buildings are made from molekules, so architecture is pure chemistry? - Authored by: Stefan Wagner on Monday, June 11 2012 @ 04:23 PM EDT
- You better free your mind instead - Authored by: celtic_hackr on Tuesday, June 12 2012 @ 01:51 PM EDT
- It's a problem of CHARACTER - Authored by: Anonymous on Tuesday, June 12 2012 @ 02:20 PM EDT
- Software impact on patentable stuff - Authored by: mbouckaert on Wednesday, June 13 2012 @ 03:37 PM EDT
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Authored by: Anonymous on Sunday, June 10 2012 @ 07:17 PM EDT |
there's no getting around it.
all software IS math.
it shouldn't be patentable, ever, no matter what. period.
software patents need to die.
if you agree with the arguments for inventiveness, then you must also agree that
inventive math must be patentable too.
gene sequences and such should also not be patentable,
and neither should "business processes"[ Reply to This | # ]
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Authored by: jesse on Sunday, June 10 2012 @ 07:19 PM EDT |
...it provides an interface from my finger to the touch keyboard to
the words on the screen in an incredibly efficient and useful
way.
The mathematics does none of these things.
1. the
interface from your finger to the touch keyboard is hardware. Once the "touch"
is converted to symbolic notations it should no longer be in the realm of
patents because the symbols are manipulated by the mathematics.
2. The
"words" on the display are not words - they are a light pattern that generated
by the hardware. These light patterns are identified by mathematics, which again
should not be in the realm of patents. The device that translates the symbolic
values into light patterns is something that should be patentable.
The
hardware should be patented. But not the mathematics. That is nothing but
abstract symbolic manipulation.
[ Reply to This | # ]
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- The first example is bad - Authored by: mrisch on Sunday, June 10 2012 @ 07:24 PM EDT
- The first example is bad - Authored by: jesse on Sunday, June 10 2012 @ 07:28 PM EDT
- and its obvious - Authored by: Anonymous on Sunday, June 10 2012 @ 07:35 PM EDT
- This patent reminds me of Diehr - Authored by: Anonymous on Monday, June 11 2012 @ 02:39 AM EDT
- All that a computer can do is add! - Authored by: Anonymous on Monday, June 11 2012 @ 03:51 PM EDT
- The first example is bad - Doesn't balance the costs against the value of disclosure. - Authored by: Anonymous on Monday, June 11 2012 @ 04:38 PM EDT
- Economic value - Authored by: Anonymous on Tuesday, June 12 2012 @ 05:47 PM EDT
- Actually, the first example is good - Authored by: Anonymous on Monday, June 11 2012 @ 06:52 PM EDT
- And here is some prior art - Authored by: Anonymous on Monday, June 11 2012 @ 08:02 PM EDT
- shapes for words - Authored by: Anonymous on Tuesday, June 12 2012 @ 03:40 AM EDT
- Draw a circle around the general purpose PC - Authored by: argee on Monday, June 11 2012 @ 08:21 PM EDT
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Authored by: Anonymous on Sunday, June 10 2012 @ 07:21 PM EDT |
Software is both utilitarian and elegant, programmers create both art and value
through programming by making things work with the sweat of their time and
effort.
Since I can program nearly any requirement given enough time and understanding,
by what right does someone come along and say they can own, monopolize
something, an idea that I have developed from scratch using my own expertise in
order to feed my family.
If I am sufficiently capable, skilled in the art to independently develop an
idea from scratch to working code it should not be patentable ever.
Copyright is sufficient to protect and monetize (if that is your requirement)
third party code that I may or may not use to help reduce the time taken to
create my product.
rgds
[ Reply to This | # ]
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Authored by: Wol on Sunday, June 10 2012 @ 07:58 PM EDT |
WRONG WRONG WRONG
And it's been wrong pretty much since the dawn of the mainframe back in the
sixties. And the plethora of virtual machines spawned in the seventies.
Given the fuss we've had with the OraGoogle lawsuit these last few weeks, surely
that's obvious? The whole point of that lawsuit was that Oracle were upset that
Google had allegedly subverted their plan to make Java run on any hardware. But
let me set you a little test. Tell me what hardware a Java program is meant to
run on - any Java program - without giving me wriggle-room to argue "well I
can run it on something else completely different". It can't be done.
Let's say I write a Java program. It runs on a JVM. Which I might have installed
on Windows. Which runs in VirtualBox. But I don't have a x86 chip so that's been
installed in Qemu or Bosch or somesuch. Which might be running on a Sparc. Which
is a microcode CPU so the published instruction set bears no resemblance to the
real hardware instruction set. Which itself might be yet another program...
At NO POINT WHATSOEVER can you point at it and say "that level must be
hardware".
And indeed, though I've never used an IBM mainframe, I understand that all the
old 60s code written for OS/360 and its predecessors still runs fine. It may run
on an emulator, that runs on another emulator, that runs on yet another
emulator, but you can take an old mainframe program and run it on the latest
Z-series without any problem whatsoever.
Let me give you another example, from a programmer we all revere :-) Linus
himself is on record as saying that Linux is not written to run on any
particular hardware. How odd! That's an OS, who's primary purpose is to
interface with hardware and provide an abstraction to the programs on it! Yet
Linus is on record as saying it is more efficient, and produces much better
code, if he programs to an idealised abstract hardware! If memory management,
for example, works best with a 3-levels-of-indirect manager, then he programs to
that abstract model and writes a shim underneath it to hide the fact that say
x86 only has two levels.
You mention the Jacquard loom in passing. And totally ignore the point we've
brought up repeatedly in connection with that (and the pianola). Are you arguing
that changing the punch card set that made the loom create a different pattern,
or the pianola play a different tune, is actually a new machine worthy of a new
patent? Because if you aren't, then nor is a general purpose computer with a new
program worthy of a new patent.
Look at programming this way. You're a student in a maths class. Your professor
sets a maths problem on the board, and you write a twenty-page solution in your
notebook. Is that solution worthy of a patent? Now imagine you're a CS student.
Your professor sets a programming problem on the board, and you write a
twenty-page program in your notebook. Is that worthy of a patent? And NO MATTER
HOW a compiler translates that into assorted machine codes, the principle of
equivalence states that the binary is mathematically identical to the source.
Now if you think that sticking a different piano-roll into a pianola creates a
new, different, patentable pianola then you can argue that sticking a different
program into a general-purpose computer makes a new, different, patentable
computer. But I don't think many people here will agree with you.
Cheers,
Wol[ Reply to This | # ]
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- software has to be written and compiled for specific hardware - Authored by: mrisch on Sunday, June 10 2012 @ 08:14 PM EDT
- Stuff that I can do with my laptop I just can't do on my phone. - Authored by: Wol on Sunday, June 10 2012 @ 08:35 PM EDT
- Hardware too small or slow or programmers unwilling errors... - Authored by: Anonymous on Sunday, June 10 2012 @ 11:09 PM EDT
- software has to be written and compiled for specific hardware - Authored by: Anonymous on Sunday, June 10 2012 @ 11:50 PM EDT
- software has to be written and compiled for specific hardware - Authored by: Anonymous on Monday, June 11 2012 @ 03:16 AM EDT
- Patent Protection is too Broad and too long to work for software - Authored by: RMAC9.5 on Monday, June 11 2012 @ 03:22 AM EDT
- The Jacquard loom - Authored by: Ian Al on Monday, June 11 2012 @ 07:07 AM EDT
- Linux will not run without the proper kernel - Authored by: Wol on Monday, June 11 2012 @ 07:23 AM EDT
- A virtual machine is not hardware - Authored by: Anonymous on Monday, June 11 2012 @ 09:04 AM EDT
- software has to be written and compiled for specific hardware - Authored by: PolR on Monday, June 11 2012 @ 10:36 AM EDT
- software has to be written and compiled for specific hardware - Authored by: drakaan on Monday, June 11 2012 @ 11:22 AM EDT
- If software is a new way to solve a problem, then it is a new use for the machint? - Authored by: Anonymous on Monday, June 11 2012 @ 11:44 AM EDT
- Wrong on EVERY COUNT, Mr. Risch. - Authored by: Anonymous on Monday, June 11 2012 @ 12:00 PM EDT
- Wrong on EVERY COUNT, Mr. Risch. - Authored by: mrisch on Monday, June 11 2012 @ 01:32 PM EDT
- Wrong. - Authored by: Anonymous on Monday, June 11 2012 @ 02:03 PM EDT
- And regarding the process of books/arts/music: - Authored by: Anonymous on Monday, June 11 2012 @ 02:05 PM EDT
- And your point #2 is not germane. - Authored by: Anonymous on Monday, June 11 2012 @ 02:08 PM EDT
- The general purpose computer does not have a known use for stuff that hasn't been invented yet. - Authored by: Wol on Monday, June 11 2012 @ 02:17 PM EDT
- Wrong on EVERY COUNT, Mr. Risch. - Authored by: drakaan on Monday, June 11 2012 @ 02:57 PM EDT
- Wrong - Authored by: jesse on Monday, June 11 2012 @ 03:59 PM EDT
- Wrong on EVERY COUNT, Mr. Risch. - Authored by: PolR on Monday, June 11 2012 @ 05:37 PM EDT
- Wrong on EVERY COUNT, Mr. Risch. - Authored by: ThrPilgrim on Monday, June 11 2012 @ 07:29 PM EDT
- software has to be written and compiled for specific hardware - Authored by: NigelWhitley on Monday, June 11 2012 @ 12:17 PM EDT
- "new use for the machine"? - Authored by: Anonymous on Tuesday, June 12 2012 @ 10:59 AM EDT
- software has to be written and compiled for specific hardware - Authored by: Anonymous on Sunday, June 10 2012 @ 11:42 PM EDT
- software has to be written and compiled for specific hardware - Authored by: David665 on Monday, June 11 2012 @ 11:44 AM EDT
- System 360 compatibility - Authored by: Anonymous on Monday, June 11 2012 @ 02:52 PM EDT
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Authored by: Anonymous on Sunday, June 10 2012 @ 08:13 PM EDT |
First, Thank You for sharing you thoughts with us.
If we accept the premise that a novel, utilitarian idea which is implemented as
a stored program on a computing device is subject matter for Patent, Your
guidelines might stem the flood of useless, overbroad patents. Although I would
prefer all software (see definition above) be declared not subject matter for
patent. However we must be realistic. I expect legislation to repeal software
patents unlikely. I despair when I see old ideas applied to new technology
receive approval by the patent office. Slide to open/close is a prime example.
My other complaint is that so many ideas are cloaked in language which totally
prevents any useful teaching, which is key to the value of the Patent system. I
can't point to a specific example now, but there have been patents asserted
against defendants that When I, allegedly one skilled in the art, read, I had no
idea what practical application could be made of the invention. Then to see is
asserted against code which performed tasks which seemed to be only vaguely
related to the description of the invention. The Patent examiner is supposed to
be standing in the place of the intended audience. They demonstrably are not
representing the interests of the global community that are working in the
field. I think that we need to convene a panel of "experts" to review
samples of approved patents, and if this panel finds the descriptions unusable,
and non-specific, the Patent examiner should be placed on probation, subject to
removal if they continue to approve this useless drivel.
I read you article, and found the suggestions a positive approach to improving
the system. However, I fear that they will never be implemented. I have
written my Senators several times, and each time I have been thanked for my
input, and never felt their response suggested they were sympathetic, or that
their staff understood the issues.
Thank You again [ Reply to This | # ]
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Authored by: tknarr on Sunday, June 10 2012 @ 08:13 PM EDT |
Your Swype patent brings up the basic issue, though. Take a look back at patent 5596656 for
Unistrokes, the precursor and inspiration for Palm's Graffiti. Once you have the
basic mechanism of recognizing a shape and matching it to a symbol, it's not a
large leap from your symbols being individual characters to your symbols being
entire words. The compression algorithms used by PKZip, gzip and the like are
based on doing exactly that. I'm afraid I have to be unimpressed with the Swype
patent. It's a great idea, but the patent itself seems to handwave away
significant prior art that the applicant surely knew about. [ Reply to This | # ]
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- Curing the Problem of Software Patents, by Michael Risch - Authored by: mrisch on Sunday, June 10 2012 @ 08:20 PM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: Anonymous on Sunday, June 10 2012 @ 09:09 PM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: tknarr on Sunday, June 10 2012 @ 09:15 PM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: ftcsm on Sunday, June 10 2012 @ 10:16 PM EDT
- Whole words completely obvious - Authored by: ailuromancy on Monday, June 11 2012 @ 12:52 AM EDT
- Curing the Problem of Software Patents, by Michael Risch - Authored by: Anonymous on Monday, June 11 2012 @ 04:21 AM EDT
- Just because its obvious does not mean everyone will rush to implement it. - Authored by: Anonymous on Monday, June 11 2012 @ 01:25 PM EDT
- 10 years isn't that uncommon - Authored by: JonCB on Tuesday, June 12 2012 @ 09:48 AM EDT
- Another reason why your patentable idea shouldn't be - Authored by: celtic_hackr on Sunday, June 10 2012 @ 11:34 PM EDT
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Authored by: charlie Turner on Sunday, June 10 2012 @ 08:16 PM EDT |
Welcome to groklaw, Professor Risch! Civil discussion on this issue (as well as
almost anything in society today) is somewhat lacking. I hope we all can learn. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 08:31 PM EDT |
My own experiences taught me that, every software has bugs. So does patents.
I've seen convincing patent turns out to be claimed by ignorant, and so ignorant
that he may not even has consulted document. I always relies on source code and
benchmark to form my decision. Anyway, fixing bugs can be more important than
claim anything new. "If it's not broke, don't fix it."[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 08:44 PM EDT |
I have more than once tried to state a rule for patentability that gets around
VHDL code for an ASIC or a FPGA. The closest I can come is the patent would be
for the exact configuration of gates and hardware, not the input/output of the
device. I find that insufficiently clear or meaningful.
You acknowledge the huge body of bad patents for software. That is a problem
that is causing real harm right now. How do we fix that?
An issue with patenting software is that computers are finite machines.
Programming languages are finite. Given a particular problem, it is often
required to develop a solution that is very close to the original work. The
breadth of software patents is the devil in the details here. I am very
uncomfortable with anyone owning the input/output of the problem. It is like
someone patenting the mousetrap, not A mousetrap, but anything that can catch a
mouse. With software patents, that is often the effect.
I would like to see you address the techniques for delaying the onset of the
patent time. A patent filed years before it is granted and starting the 20 year
clock.
There is also the problem that you partially address for finding out if there
really is a patent out there that does what I want to do. The current
descriptions and specifications are impenetrable to this engineer. Even if I
wanted to search, I am unable.
Your approach may be workable, over time. I really object to someone claiming
ownership of the thoughts and processes of my mind. I like the idea that if you
can do it with a pencil and a piece of paper, it is not patentable. We create
and innovate based on the work and inspiration of others, science has always
advanced by that principle. A physical device is one thing, but my way of doing
things should be out of bounds. Even if I am not sure how to say that legally.
-- Alma [ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 08:45 PM EDT |
Congress made clear that machines, new uses of machines, and processes are all
patentable.
So the Congress did not say "new uses of processes"
A computer is a invention on it own meant to move around
bit values and that is all it does and that is already the process.
If you buy a computer you have already payed for all the
inventions you can have in a computer.
It's like having a scissors and then patenting cutting
paper with it;
Oops now i have fallen back to "new uses of machines"
But that is because if you have to explain software to
people who think they know what software is,
you have to switch to other meta fores.
/Arthur
[ Reply to This | # ]
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Authored by: Kilz on Sunday, June 10 2012 @ 08:56 PM EDT |
The patent office takes in money for the patent. In the
entire history of this country no part of government that
takes in money has ever been completely done away with. The
government will not let it happen because it allows people
in power to continue to keep their job.
It is much easier to put rules in place to regulate the
intake of the money by making it harder to get a patent.
IMHO the amount of useless software patents is the bigger
problem, and one that has a chance of being changed. Dont
hold your breath waiting for software patents to be stopped.
While I know that the people who say that all software is
mathematics are right and they shouldnt really exist. I also
know that the idea that software patents disappearing in our
lifetime is almost an impossibility. Its like trying to make
congress balance the budget.
INMO it is better to focus energy on whats possible than
whats not going to happen. Professor keep fighting on this
front. We need to make some headway and to me we are loosing
ground every day as people patent more and more of the
things that should never be patented even if software
patents exist.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 08:58 PM EDT |
Good article, Michael, but I'm not convinced software
patents are necessary. I am convinced that changing the
system may be impossible. A few things could be done to
improve the situation:
1. Reduce the term for software patents to one year.
Software can be monetized quickly, much more quickly than
hardware.
2. Eliminate patent trolls. S/w patents could be sold only
to practicing entities. Trolling _never_ contributes
anything useful to society.
3. Require source code for all s/w patents.
Regarding your 'swipe' example. It's a software solution
for a hardware problem. How to decode 2 or more letters
when the finger slides from one to the other. The fact that
a 'pattern' is deduced is trivial, as is the 'lookup'.
There are codes that resolve to letters, just as if you
typed them individually. The 'shape' business is an
unnecessary extra step. We implemented the 'lookup' feature
in 1986. Isn't it called 'auto- complete'? [ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 09:02 PM EDT |
What on earth is a "non mathematical algorithm"? Is it
something like non wet water?[ Reply to This | # ]
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Authored by: josmith42 on Sunday, June 10 2012 @ 09:14 PM EDT |
I understand you arguments as this: software patents in and
of themselves
aren't necessarily bad, it's just that a bunch
of bad software patents have
been granted.
I don't disagree, and your arguments are compelling.
However, there is one argument against software patents you
failed to address:
my understanding is that software is the
only thing in the world that is
protectable by both
copyright and patents. How can we need patents, when
copyright is in full force as soon as you write the
code? That one
argument always gives me pause whenever I
start to think software patents are a
good idea.
--- Always a lurker, so you will never see this signature.
But you are. What? [ Reply to This | # ]
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Authored by: SpaceLifeForm on Sunday, June 10 2012 @ 09:19 PM EDT |
You make an excuse for the USPTO not 'getting it',
and allow damage to occur later.
That is not acceptable.
Software is based on math and logic.
Math and logic were not invented, they just exist.
All software, no matter how creative, is still
based on math and logic, that no one invented.
Condoning 'software patents' is condoning attacks
on creativity, and all homo sapiens should be allowed
to be creative in their own way, without having to
endure an attack by someone that found the patent office.
Sorry dude, you don't get it. Your support of 'software patents' is part of the
problem.
---
You are being MICROattacked, from various angles, in a SOFT manner.[ Reply to This | # ]
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Authored by: jsoulejr on Sunday, June 10 2012 @ 09:32 PM EDT |
n/t [ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 09:36 PM EDT |
Thre are specific reasons why software should be treated
differently from other patentable fields.
1) With software, unlike for example a mouse trap, the
patentable idea is abstracted in the code. In order to
search for prior art, you have to decompile the code to get
to the idea. This is usually requires more effort than
"inventing" the idea in the first place in the case of 99%
of the software patents granted. In this context, it makes
no sense to grant patents because the search for defending
patents is more expensive than the invention being
protected. Searching prior art in software patents is more
miss than hit because of this.
2) Most ideas in software are practised but not patented.
The vast amount of prior art and known practice which is not
patentable is not expressed in software patents, but instead
embedded in actual code, in an abstract format which cannot
be readily searched. In addition the majority of software
code is proprietary, and thus cannot be searched. It is
ridiculous that patenting of subject matter that cannot be
properly searched due to abstraction and non-availability of
most of the existing art.
3) The same life is granted to software patents at to other
patents. The purpose of granting an artificial time limited
monopoly (also known as a patent) is to encourage early
implementation of an invention in order that once the patent
lapses, others can also implement the patent before its
usefulness life expires. In other words, patents are not
intended to grant a monopoly for the whole useful life of an
invention. In the case of software, development is very
rapid. The grant of a 20 year patent life is a grant of a
monopoly for an eternity, well beyond the useful life of the
invention as a result. For example, think where software was
20 years ago.
4) Patents are a crude form of IP protection, which is
necessary for many areas of development because there is
nothing better. Software has a better and more refined form
of IP protection called copyright, and therefore does not
need patent protection. Indeed it developed much faster
before patents were allowed. Patents on software in fact
slowed down the pace of innovation - the opposite of the
supposed purpose of the patent system.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 09:39 PM EDT |
I would like to focus on one area of your discussion that strikes me as a
major flaw.
I’m a firm believer that for many disputes it is
more efficient for the parties that have a stake in the matter to fight about
validity at the time of litigation.
This makes the false
implied assumption that both parties in a dispute have similar assets. That's
not true. In cases like Oracle v Google, both parties have sufficient assets to
cover major litigation costs. The problem is that in software there are a lot
of very small operations, often a single developer, who do not have the
financial resources to defend against a patent troll or an unscrupulous
commercial company.
If you defend patents, then you have to come up
with a way for a small business to defend itself without consuming all it's
resources. [ Reply to This | # ]
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Authored by: pcrooker on Sunday, June 10 2012 @ 09:48 PM EDT |
First, thank you Dr Risch, for writing your thoughts about patenting for
Groklaw, this will be an interesting exchange.
I think Dr Risch presents a well-reasoned argument that software
"inventions" can (though rarely in practice do) contain the same
qualities as their physically-realised counterparts.
"Abstract idea" is an oxymoron - all ideas are abstract. What is meant
here is the difference between mere ideas and their useful expression. This
distinction forms the basis for patent legislation, yet it has become so blurred
as to be meaningless due to computers, software, the Internet, the speed of
change and a globally available, knowledgeable and skilled workforce. Any
invention, software or physical, useful or not, can now be reduced to an
algorithm and easily implemented (by those skilled in the arts, as they say).
Because there is no longer any meaningful distinction between ideas and their
implementation, shall we rely on mere tradition as the basis for the granting of
state-imposed patent monopolies? A tradition that now overwhelmingly hampers
those that the writers of the Constitution sought to help with this provision?
Copyright remains for the protection of the specific expression of one's ideas,
perhaps (though this has yet to play out) but not protection for ideas alone.
How can patents be justified?
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 09:53 PM EDT |
Another amateur dazzled by a stupid patent.
I am really sorry, but if you think that keyboard-patent example of yours is an
example of something that should be protected, then you are part of the
problem.
There is NOTHING in that patent that deserves protection, that is innovative in
the least, that advances the state of the art in the slightest, or is any
different than what a modestly competent programmer is expected to do every day.
Nothing. Nothing. NOTHING.
I tried to believe you. I took the time to read the patent. It is junk. If
you think it is patentable, then you are wrong. It is that simple.
And, as far as your hardware person goes, NO. There are very few differences
between different hardware implementations. Hardware people are simply not that
innovative. Computers operate pretty much the same way, both hardware and
software wise, as they did FIFTY YEARS AGO. Just scrambling the codes and
making it LOOK different should not be enough to turn software into hardware.
Massively parrallel SIMD and associative-memory LISP processors are about as
different as it gets, and they simply are not that different to anyone
"skilled in the art."
Maybe your hardware friend needs to stop being so impressed, just learn
software, and find out how wrong he is.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 10:23 PM EDT |
You have a great example there in swipe. It is a wonderful idea and you could
maybe argue it is worthy of a patent. However it also points out one problem
with patents. When it was first released it was free demo software and lots of
people loved it and much user testing was done and a great product made. Then
It was taken away because of course they needed to make money out of their
invention. So all those people who had come to use it and love it wanted to
keep using it so you would think now they would be able to buy it right? Nope
the company making it refused to sell it and instead released it only to one
handset maker (and a few others later maybe) to differentiate their products and
force any users who loved this to buy one of these new phones (and landfill
their perfectly good previous phone). I know its the right of the patent holder
to stop everyone using the idea and to discriminate about who they sell it to.
But it's just a very bad side effect of how patents work that they can abuse
this monopoly they have on this idea to keep it away from people who are willing
to pay good money to buy it.
With something that can be sold standalone this is not always a problem as the
item can be sold as is for a fair price. But what about if it can be combined
with something that is 20-50 times more expensive to make that expensive thing
sell more? Imagine if a drug company makes a new life prolonging drug and then
says that it can only be sold as part of a package with a Ferrari (obviously
implying that if you are rich enough to own a Ferrari then you deserve to live
longer than the rest of us). In this situation they will make lots of money
selling Ferrari's by the boat load but its not a very nice use of a Patent's
monopoly power is it? Of course this kind of abuse would quickly get people out
on the streets with pitch forks and touches but if it's just a $400US phone you
have to buy to get this $20 feature which isn't going to kill you if you don't
have it people often ignore this kind of abuse.
The move to restrict access to swipe meant it was heavily pirated as well but it
didn't matter I guess because they got paid so much by the handset makers in the
end. It's just a shame that many consumers have to be steal to get what they
would prefer to pay an reasonable fee for.
Michael[ Reply to This | # ]
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Authored by: RTH on Sunday, June 10 2012 @ 10:33 PM EDT |
Others are writing about algorithms and maths etc., so I'll tackle the basic
uselessness of software patents. I am assuming that the first example is about
"as good as it gets" for software patents.
First off, NO software engineer (except maybe those employed somehow in the
patent litigation industry) EVER gets ideas about what software to write or how
to write it by studying patents. None. Never. The entire compendium of patents
and the knowledge they encompass is completely, totally useless. Completely.
Without exception. Ever.
So as far as advancing the sciences and arts, the patent process has NO direct
benefit. Absolutely none. (I hope I have stressed that sufficiently.)
That leaves only the possibility of indirect benefit. For example, someone sees
a good idea in practice and decides to mimic it. For the sciences and arts to be
advanced, this easy replication that is hindered by patents must be such as to
dissuade the original creator from creating the first example. I use your
(presumably best-case) Swype patent to show why this argument also fails.
1) What is the original element in that patent? It is the idea that Finger
motion Patterns can Represent Words (FPRW).
2) Given FPRW, everything else follows as night follows day, or at least it will
if, as you say, you have software expertise. How do we know what words? Have a
database of them. What patterns stand for what words? Store patterns with the
words in the database. But people are inaccurate -- so have some error allowance
- maybe links to similar patterned words, or maybe add an error margin around
the swipe and find all patterns that fit in the error margin.
--Interlude-- Did I tell you I stopped reading as soon as I saw the example? Let
me go back and read the rest of your article now... --- And as I thought, the
implementation basically amounts to what I just wrote - off the top of my head
in the time it took to type it out. --end interlude---
3) So what do we have so far: (1) a bright idea, that suddenly struck someone at
some point, and (2) a drop dead obvious implementation strategy. But (1) could
occur to anyone at any time. And this same bright idea probably occurred to a
few dozen of hundred people some time or other without prompting. But even if it
only occurred to a single soul on the planet, would the lack of patent
protection have stopped it from happening? Let's get real. As for (2), given an
idea, how to make it happen WILL be discovered by any reasonably competent
software writer. Ideas that can't be implemented because the way to do it is so
darn non-obvious just don't exist.
4) So what else is there, after the flash of inspiration that no patents will
encourage or deter, and the non-obvious how-to-do-it? The only remaining step is
the sweat of the brow in spending the hundreds or thousands of hours needed to
write the actual software. And guess what? We have copyright to prevent someone
taking that away from me. If I invest that time, I'll have at minimum a
headstart over any competitors; by the time they can duplicate, I'll either have
made some money or learned how to do it even better or both. The only thing a
patent would add is a decade or so of others who would have had the bright idea
themselves anyway being legally prevented from producing a similar or better
product.
In short, patents don't solve any problem for software or software innovation.
Lastly, the surprising thing is that, without arguing that they are also useless
everywhere else too, I can at least note that they are surprisingly less useful
than they are assumed to be. The 'light bulb' moment for me was when I learned
the early history of the steam locomotive. Steam locos need high pressure steam
because low pressure requires such a bulky engine it cannot be put in a vehicle
and made mobile. Watt had a patent on the steam engine, and he refused to make
high pressure variants. So the entire world had to just sit around for ten years
and wait out the expiry of Watt's patent; only when that happened could the
industrial revolution and the railway age really get started.
[ Reply to This | # ]
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Authored by: PolR on Sunday, June 10 2012 @ 10:55 PM EDT |
Thanks Dr Risch for sharing this with us. This is a most needed and most welcome
discussion.
I agree that every tools at our disposal must be used to improve the quality of
patents. But I think that in the case of software there is more than quality at
stake. Much of case law rely, to stay polite, fictional principles of computer
science. One avenue to improve the software patents is to interpret the law
according to principles of computer science which are correct.
For example in re Alappat says that programming a computer makes in effect a new
machine. Where is the factual analysis that leads to this determination? It is
not in the Alappat case. I have read the precedents that Alappat invoked in
support of this holding and I don't find the factual analysis there either. The
closest I could find in in re Benhardt where the CCPA ruled that a new
arrangement of memory elements is a change in machine structure, but without
justification for this conclusion.
If you know where the factual analysis is located please tell me. I will be
happy to read it.
Here is a computer professional view on the topic.
Consider driving a car. The engine is running. The wheels are rotating. These
are physical changes but they are not structural changes to the car. If we
decide otherwise no car goes anywhere because as soon as a moving part of the
machine moves, it is a new machine. We need to distinguish changes which are the
normal operation of the machine and changes like replacing the engine which
genuinely alter the machine structure. The CCPA argument in Bernhart lacks the
explanation of why a change in computer memory is a change in computer
structure. Memory is changed billions of times per second. Computations can't
proceed without changing the memory contents. If Bernhart is right no computer
runs any program because as soon the memory is modified it is no longer the same
computer.
What is the function of the CPU? It is to execute the instruction cycle. The CPU
reads from memory one instruction and executes it. Then the CPU reads the next
instruction from memory and then executes it. The CPU proceeds like this
instruction by instruction until the execution of the program is completed.
The list of possible instructions we can use in a program is finite. This list
is predetermined by the designers of the CPU and it is documented in technical
manuals. The CPU has all the structure to execute each and every instruction and
it has the structure to cycle over a program and execute it in its entirety.
This is the function of the CPU. Loading a program in memory doesn't expand this
functionality. It is a required operation to use the existing built-in function
of the CPU.
Why would a computer need more structure to execute a program? The instruction
cycle is all that is needed. There is no operation of loading a program into the
CPU to configure it electrically. There is no arrangement of transistors that
corresponds to the programs functions. The program is executed instruction per
instruction with the same CPU structure.
Besides programs are modifiable, like all other memory contents. A running
program can be modified in memory while it is run. The '104 patent in the Google
v. Oracle case claimed precisely one such programming technique.
Programming languages in the functional family are not implemented solely by a
sequence of instructions like the usual imperative programs. They are
implemented with a combination of instructions and data structures called
closures. The function of the program depends as much on the closures as it
depends on the instructions. The execution of the program requires that the
closures are constantly be modified as the execution progresses. This means that
the memory contents which gives the program its functionality is constantly
changed, like the wheels of the car are constantly rotating.
You can see why I am complaining about fictional computer science. The holding
from Alappat has no factual basis.
[ Reply to This | # ]
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- Mark Risch, your credibility is on the line - Authored by: halfhuman on Monday, June 11 2012 @ 04:12 AM EDT
- Where is the analysis that determined software makes a new machine? - Authored by: Anonymous on Monday, June 11 2012 @ 05:44 AM EDT
- How do you suggest we get rid of software patents? - Authored by: Kilz on Monday, June 11 2012 @ 07:34 AM EDT
- It is in the details - Authored by: Anonymous on Monday, June 11 2012 @ 12:17 PM EDT
- Alappat and Benhardt are factually wrong. - Authored by: Anonymous on Monday, June 11 2012 @ 01:04 PM EDT
- Well, since my credibility is on the line... - Authored by: mrisch on Monday, June 11 2012 @ 03:07 PM EDT
- You're so wrong - Authored by: Anonymous on Monday, June 11 2012 @ 03:29 PM EDT
- still unpersuasive - Authored by: Anonymous on Monday, June 11 2012 @ 03:34 PM EDT
- Well, since my credibility is on the line... - Authored by: PolR on Monday, June 11 2012 @ 04:36 PM EDT
- Well, since my credibility is on the line... - Authored by: Anonymous on Monday, June 11 2012 @ 04:46 PM EDT
- Well, since my credibility is on the line... - Authored by: mrisch on Monday, June 11 2012 @ 05:26 PM EDT
- Well, since my credibility is on the line... - Authored by: Anonymous on Monday, June 11 2012 @ 05:57 PM EDT
- Well, since my credibility is on the line... - Authored by: PolR on Monday, June 11 2012 @ 06:51 PM EDT
- Well, since my credibility is on the line... - Authored by: Anonymous on Tuesday, June 12 2012 @ 09:42 AM EDT
- Well, since my credibility is on the line... - Authored by: mipmip on Tuesday, June 12 2012 @ 12:49 PM EDT
- Well, since my credibility is on the line... - Authored by: rcsteiner on Tuesday, June 12 2012 @ 04:36 PM EDT
- so the family minivan ... - Authored by: nsomos on Monday, June 11 2012 @ 05:56 PM EDT
- You have not responded to the PolR's main point - Authored by: Anonymous on Wednesday, June 13 2012 @ 06:46 AM EDT
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Authored by: Kilz on Sunday, June 10 2012 @ 11:09 PM EDT |
I have read enough posts saying that patents on software shouldn't exist. I am
not going to debate thta because I dont
think they should either. But the person who wrote this
article has a way of dealing with some of the patents.
For those that dont think they should exist here is your
chance to enplane exactly how we can get rid of them completely. Please offer
step by step real world ideas on how
to get rid of them that we at Groklaw can implement that will
have the effect of getting rid of them for good.[ Reply to This | # ]
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Authored by: PolR on Sunday, June 10 2012 @ 11:31 PM EDT |
In mathematics the term algorithm is term of art. It has a precise definition
in a branch of mathematics called computation theory. This is, by the way, one
of the mathematical basis of computer science. Mathematical algorithms in the
sense of computation theory are the same thing as algorithms in computer
science.
An algorithm in this sense is a procedure for manipulating symbols
which must meet some special requirements. The procedure must be entirely
determined by the explicit rules of the procedure and the symbols being read.
No judgment call, no ingenuity is allowed. Algorithms are machine executable.
This is why they are so important in computer science.
If we use this
definition for the term algorithm we won't end up deciding no process is
patentable. We are not using some overly broad definition which is synonymous
with process. The term is circumscribed. Not all processes are procedures for
manipulating symbols in this manner.
Here are some examples of algorithms.
The alphabet has two symbols: 0 and 1. The two algorithms are:
- Boolean
AND
- read two symbols
- if both symbols are 1 then the answer is the
symbol 1
- otherwise the answer is the symbol 0
- Boolean
OR
- read two symbols
- if both symbols are 0 than the answer is the
symbol 0
- otherwise the answer is the symbol 1
You will have
recognized the ordinary logical operations under the ordinary convention the 0
means false and 1 means true. But the algorithm doesn't rely on these meanings.
It works exclusively by looking at the symbols. This is why the algorithm is a
manipulation of symbols and not a manipulation of concepts.
In digital
electronics boolean operations are related to circuit structure. Here are the
description of two circuits which manipulates voltages.
- Circuit no
1
- receive two voltages on two input wires
- if both voltages are 0.5V
then produce the output voltage 0.5V
- otherwise produce the output voltage
0V
- Circuit no 2
- receive two voltages on two input
wires
- if both voltages are 0V then produce the output voltage
0V
- otherwise produce the output voltage 0.5V
Can you tell which
circuit implements the boolean AND and which implements the boolean OR using
voltages? The correct answer depends on a convention. The usual convention is
that 0V means the bit 0 and 0,5V means the bit 1.The circuit 1 is AND and
circuit no 2 is OR. But what if the engineer decides to reverse the convention?
That 0V means the bit 1 and 0.5V means the bit 0? Then the functions of the
circuits are reversed. Circuit 2 is now AND and circuit 1 is OR.
This means
two things. Bits are symbols and this is not the same thing as an electrical
signal, like voltage. Symbols are abstractions, like the difference between a
letter and a mark of ink on paper. The second thing is that the algorithm is
abstract. It is not the same thing as the description of a circuit. It is a
description of how the symbols are manipulated.
I believe the law doesn't
think clearly about software because the necessary distinctions are not being
made. [ Reply to This | # ]
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Authored by: Rubberman on Sunday, June 10 2012 @ 11:49 PM EDT |
For the most part, I agree with Dr. Risch - I am the holder
(sole inventor) of a software patent (owned by Brooks
Automation) that is applicable to adaptive systems (software
systems that can easily adapt to environmental changes). It
has been utilized in the manufacture of semiconductors,
flat-panel displays, and disc drives by most of the major
manufacturers of such devices (IBM, Samsung, Philips,
Seagate, etc). That said, I have to agree that most software
patents are just plain ridiculous! They are so obvious as to
evade logic as to why they were granted in the first place.
In my situation, this was the solution to a serious problem
- allowing shrink-wrapped systems software to be modified by
the end user to their needs by simple specification, and not
requiring any changes to the base code or code compilation
in any way. It took me 5 years of deep thought and research
to derive the solution that was recognized by US patent
#7185325. The efficacy of this invention was proven at the
Samsung/Sony joint venture LCD manufacturing plant in South
Korea in the early 2000's.
So, in my professional opinion (I am now Senior Systems
Engineer for a tier-one mobile phone manufacturer), most
software patents are bogus, but that doesn't mean that we
should "throw the baby out with the bath water". It means
that the USPTO and other patent-granting authorities need to
apply much more rigorous standards before granting these
patents. I think that about 1% of current software patents
are worthy of that protection. That means 99% should be
revoked, and the sooner the better![ Reply to This | # ]
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Authored by: Anonymous on Sunday, June 10 2012 @ 11:54 PM EDT |
What about a patent where its formal description does not
contribute to public knowledge? I can imagine some patents
where a video or photo of the software in action would serve
as a sufficient description, and the patent only gives an
"obvious" implementation algorithm.
From just this video or photo, one skilled in the art would
likely use the same algorithm as stated in the patent to
develop an independent implementation. But, the obvious
solution will be an infringement of the patent.
Could/should patents like this be rejected for obviousness?[ Reply to This | # ]
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Authored by: jvillain on Sunday, June 10 2012 @ 11:57 PM EDT |
The problem with patents is the same as it is for copyrights. When they were
invented they were designed for a world that just doesn't exist any more. Let me
use my music copy right example first and then we can apply it to patents but
not in a David Boies I have no clue way.
When music copy rights first came out the world was very, very different. No
cars,planes, telephones, computers etc, etc. Cities and towns were much smaller
and the distance between them much much larger. This is important.
If I was in New Orleans and I wrote a song about the only people I had to worry
about copying was the people in the same town or the odd rare traveller. The
idea that some one from San Francisco or London was copying it was virtually
impossible because they had no access. Even if you popped into a speak easy and
heard me play it once the best you could get from it was a rough interpretation.
Maybe the chord changes and a few lyrics.
The idea that some one in Sydney Australia created the same song at the same
time was flat out impossible. In this environment the copy right system has a
chance to work the way it is supposed to.
Move forward to today and music moves around the world and to all corers of the
world in less than a heartbeat. I have access to millions of songs. I have the
ability to create music on line with people any where in the world in real time
if I have the bandwidth. If we create a song how much of it is truly going to be
novel compared to what you would have seen at the beginning of copyright?
Shift gears to patents. Marconi and Bell fought it out on opposite sides of the
ocean with the fastest form of transport between them being ocean ships. The
idea that they were using each others work or were collaborating usefully is a
stretch.
Leap forward to today where there can be hundreds of teams working on the same
thing borrowing from each other or people who are not evolved but have shared
their knowledge and all located in different countries. Yet only one gets the
patent in the US for example. Is that fair? Is that right?
The answer that you might come up with is that possibly no patent should be
issued. But answer this. How many patents issued these days in any field not
just software are pure inventions with no input from the outside? Probably close
to none.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 12:01 AM EDT |
http://gigaom.com/mobile/famous-judge-spikes-apple-google-case-calls-
patent-system-dysfunctional/[ Reply to This | # ]
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Authored by: PolR on Monday, June 11 2012 @ 12:08 AM EDT |
I think you example patent is poorly chosen. A process for a human for entering
data by swiping on a screen is not the same thing as the execution of a program.
It reminds me of the patent in Diehr. It included the step of actually curing
the rubber. Both patents are doing more than claiming software because they are
actually claiming all the steps required to actually achieve the practical
result.
But a lot of patents don't do that. They mention the utility as an intended
purpose but if we run through the elements of the claim only the machine or
software functions elements are recited.
I believe this distinction is crucial. It makes the difference between claiming
mathematics because it could be used in a practical manner and claiming the
actual use of mathematics. When combined with the notion that in pure software
the invention is the mathematical algorithm and not some machine or process by
which it operates, a lot of the silly patent will get weeded out and the ones
which are genuinely drawn to patentable subject matter will remain. These
patents may then be analyzed for novelty, obviousness etc.
An algorithm in this sense is a procedure for manipulating symbols which must
meet some special requirements. The procedure must be entirely determined by the
explicit rules of the procedure and the symbols being read. No judgment call, no
ingenuity is allowed. Algorithms are machine executable.
There is a difference between how humans manipulate symbols and how machine do.
When presented with the word FOX a human knows which kind of small furry animal
this is. A computer will see the letter F followed by the letter O followed by
the letter X. Algorithm are the only way computers can manipulate symbols
because, in part, they are the kind of procedure which don't require the machine
to act based on meaning. The machine can act based on the bits alone.
The task of a programmer is to find a procedure that works which won't require
the machine to understand meaning. This procedure will be the program written in
source code. The program is a written description of the algorithm.
What does it mean to utility? In most circumstances utility is totally related
to meaning. Therefore utility has no structural relation with the program
execution. Meaning has been abstracted away by the task of writing a program.
Many software patents are like attempts patent a novel by reciting an outline of
the plot claiming this describes the structure of a stack of paper covered with
marks of ink. But the exact theory is more like claiming the structure of a
computer, or the process by which it operates, by reciting an outline of the
meaning of what is written in its memory. But meaning is not part of the machine
structure and it is not part of the execution of the program. The machine alone
cannot deliver the utility without some external party able to read the symbols
and act on the meaning.
Software is distinguished from a practical use in the same manner the
calculations of the engineer about a rocket are distinguished from the rocket.
Are we going to patent the rocket? Or are the calculations patentable because
they refer to the rocket even though we don't actually make the rocket?
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 12:23 AM EDT |
Markus Kuhn wrote an excellent article describing a specific, simple software
patent which turned out to be harmful. He discusses the particular situation of
software patents required for ensuring interoperability of systems (by
implementing standards).
It is possibly the simplest to understand example
I have seen. Non-programmers should be able to understand his description of the
technical details.
Here's the challenge: which arguments touted in this
article and comments handle Kuhn's example sensibly?
Read it here: M
arkus Kuhn: A One-line Software Patent
One of the comments discusses a
creative licence to solve(?) this problem used by the Bluetooth group.
Let
me add one question. Has anyone ever seriously considered expropriation
(eminent domain for our American friends) for intellectual property which is
needed for critical public interactions among systems?
[ Reply to This | # ]
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Authored by: Tolerance on Monday, June 11 2012 @ 12:26 AM EDT |
I was an engineer and I'm trying to be a lawyer. I just know people are going to
give you a hard time about phrases like "Of course you are right that
software has to be written and compiled for specific hardware", because of
concepts like "Write once, run anywhere" beloved of Java enthusiasts,
or the ancient p-Code.
More importantly, for your engineer interlocutor to say 'ALL software is a
specification of hardware' is absurd - it's precisely the reverse of the truth.
Consider pseudocode, the point of which is to remove the software idea away from
hardware.
But none of it matters, ultimately. I suspect the way out of this for pro-patent
engineers is to get SCOTUS to abandon the long established rule that maths and
abstractions in general can't be patented. They're already half-way there.
It's not hard to show that software is a subset of mathematics. Turing
completeness certainly shows that an algorithm (by the old definition, a program
which eventually halts) is isomorphic to an object in maths (a suitably defined
Turing machine).
Someday the advent of computers which are not equivalent to a Turing machine
(e.g. quantum computing) might extend the isomorphism to non-algorithmic
processes for real hardware, but we're not there yet.
This means anything outside quantum computing has a complete analog in math - it
means that computer algorithms are indeed necessarily analogous to mathematical
formulas. That's a result straight out of the theory of computation. Of course
not all programs are algorithms in the old sense; they don't all halt, for
example. Still, it's not guaranteed that computers will always be classic
Turing machines. The idea of a Turing machine has already been generalized. But
it's all still math!
Technically speaking, there is an isomorphism between any program executed in a
computer (Turing machine) and a corresponding abstract mathematical procedure
(algorithm). This arises from the founding work of Church and Turing, who in
turn were looking into the work of Kurt Godel. All this was settled before the
second world war. Things haven't really changed since.
---
Grumpy old man[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 12:27 AM EDT |
So, does this impede innovation? I don’t think so – continuous
stroke typing was a twinkle in the eye of researchers at the time this was
invented. The patent cites the leading work at the time, and that work was not
nearly as easy or useful as this product. The idea, once disclosed, was easily
copied by competitors, and the only way to ensure early development of it was to
protect it with a patent.
Yes, it most certainly does impede
innovation. One only has to ask how long it might be expected for that
particular solution to arise had Swype not disclosed, or even devised, it. Do
you really think it would have taken 20 years?
This is no longer 1790
and the population of the U.S. is now somewhat north of 4 million -- there are
more professional programmers now (about 1 million) than there were educated
Americans at the time the patent system was devised. And the number of "amateur"
programmers who are in possession of both the necessary tools and the basic
skills to tackle the problem is likely an order of magnitude or more larger
(SourceForge has about two dozen projects dedicated to special keyboard input
needs).
The U.S. patent system originated in a time of virtually
unlimited natural resources and a dearth of skilled tradesman to exploit them
(it was largely a recruiting tool for attracting scientists and artisans from
the Old World). Our society no longer has the luxury of unbounded resources, and
can no longer afford the extravagance of inhibiting for decades the wealth of
talented, educated developers that it does have.
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 12:44 AM EDT |
What usually inspires change isn't the discovery of a new principle. It's the
changing economics which make ideas which were "lying around waiting to be used"
financially practical.
I have written software for automated
test systems. The way I would do things today isn't how I would have done them
twenty years ago. What has changed is that CPUs, RAM, and disks have become
simultaneously both faster and cheaper. Designs that were uneconomic then are
the cheapest way now. Cost guides design choices, and uneconomic choices are
briefly examined and discarded. The fact that "nobody did 'X' before" is
meaningless if nobody did it because it was too expensive. I don't spend time
and money on ideas that are impractical today but which might be practical in
future. It's conceivable that someone might come up with a useful new idea in
test equipment that I would never have thought of, but after 30 years in the
industry I haven't seen it happen yet. I have come up with ideas that nobody
else has, but I don't kid myself that other people wouldn't have come to the
same conclusion given the same motivations. New ideas like that just don't occur
at the frequency that we see patents being filed.
However, economics
isn't a consideration for someone filing a patent. That's someone else's
concern. You simply need to file your patent and wait for Moore's law to make it
practical for you. In other words, patents have become like buying a lottery
ticket.
Perhaps another way of looking at the patent problem is like
comparing it to the spam e-mail problem. If e-mails are very cheap, someone can
spew out millions of them in the hopes that a very few will pay off. Software
patents are very cheap, in that it seems very easy to file thousands of patents
that vaguely cover broad concepts on "hot" new product areas (e.g. mobile
phones). Like spam e-mail, spam patents can be profitable even with a low
success rate. Also like spam e-mail, spam patents impose costs on society which
far exceed the (unjust) benefits which accrue to the spammers. Those costs are
not borne by the spammer though, but are externalized to society as a whole and
become a net economic loss.
The people who claim to have some
brilliant idea to make some subtle reform to patent law to "solve the spam
patent problem once and for all" are like the people who claim to have a
brilliant idea to make some subtle change to e-mail protocols to "solve the spam
e-mail problem once and for all". Neither address the fact that the spammers are
working actively to subvert the system because they stand to make a great deal
of money by doing so.
Why should software patents exist? If you ask
almost any major software patent holder, he will almost invariably tell you that
he has these patents "for defensive purposes only". In other words, if you
believe the companies who are actually filing the patents, they will tell you
that software patents are only necessary because other companies have
software patents. The only people who consistently claim that software patents
benefit society are patent lawyers and patent trolls.
Software patents
are an artificial government regulation which are intended as a form of economic
central planning intended to "promote innovation". The people who actually do
the innovating however say that software patents do nothing of the sort, and
indeed are a hindrance to innovation. So why not simply abolish them?
[ Reply to This | # ]
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Authored by: jimrandomh on Monday, June 11 2012 @ 12:53 AM EDT |
I find it interesting that you used Patent 7,098,896 as an example,
because
I personally have a small notebook
of novel ideas about how to do text input,
mostly orthogonal to slide
typing, and a codebase with a decent start on
implementing them. I abandoned the project unpublished soon after
discovering
this very patent. While you say that
"there are ways to work around the patent
to allow for continuous
stroke typing", I concluded at the time (and still
believe) that this is untrue - that making a touch-screen keyboard not
infringe this patent would require crippling it
so badly that users would
never accept it. This would strongly argue
against your statement that this
patent does not
impede innovation.
What is obvious when you are
starting from scratch, and what is
obvious when you have been thinking about
touch-screen input for a month, are very different things. The patent
and
legal systems are entirely incapable of
evaluating the latter criterion. I
believe that stroke typing falls in the
latter category ("obvious if you think
about the
topic long enough"), and that the apparent novelty of the idea comes
only from the lack of widely-available touch
screens on the market at the time
it was patented. [ Reply to This | # ]
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Authored by: ailuromancy on Monday, June 11 2012 @ 01:23 AM EDT |
Do you reach a compromise with a mosquito or a leach?
If someone comes to
you house, tells you it looks
fragile or combustible and that you should pay
some
protection money to prevent something from happing
to it, what sort of
compromise would you consider
reasonable?
I suspect the patent
helped the company get
venture funding
I suspect the patent
cost lots of money, provided
no revenue, helped drive the company into
bankruptcy
where the patent was bought by a troll who is now
trying to extort
money from anyone who profits from a
device with a touch screen.
Patents
are an abysmal disaster for anyone with
a novel invention. It takes years to
get a patent, then
more years to sue the pants off the person who actually
turned the idea into a profitable business.
The way to profit from an
invention was to manufacture
and sell. You could become a market leader before
anyone
else had time to copy your invention, and by that time
you could have a
second generation product ready.
These days, the way to profit from an
invention is
to let someone else to all the work, then threaten him
with a
dozen invalid patents.
If you haven't worked out
"why not" for
software patents
yet, then I remember that you
"spend a lot of time finding
prior art
to invalidate software patents".
What a complete an utter waste
of your life.
Wouldn't it be so much better if you could do something
constructive instead?
A decade ago IBM read patents to look for ideas.
Nobody else had the resources. Now not even IBM
looks for new ideas patents,
partly because they are a huge pile
of dross, and partly because of the triple
damages.
There are now two good reasons to read a patent:
Because
someone is suing you, or because the patent
has expired and implementing it
means defending yourself
will be cheaper when someone does sue
you.
People have no problem creating products without
reading patents.
Why do we have a patent system at all?
[ Reply to This | # ]
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Authored by: PolR on Monday, June 11 2012 @ 01:31 AM EDT |
First let's get some misconceptions out of the way. Software is not the
description of a machine structure for the reasons I presented in a previous
comment to this same article. Therefore the math of software is not a
mathematical description of such a structure.
Next the mathematical part of software is its execution by the CPU. It is not
the source code and it is not some end to end process involving the computer as
a component. Diehr's rubber curing patent would survive the software is math
argument and so will many similar processes which involve more than just running
the program. These patents may still be invalid for novelty, obviousness or
other reasons.
But there is a category of software patents which claim nothing more than
running the program, feeding it with input and outputting the answer. These
patents are the ones which IMHO could be invalidated by the software is math
argument. There may also be some patents involving software which amounts to
nothing more than reciting the algorithm and say apply it. These patents may be
invalidated by a Mayo v. Prometheus kind of argument on the basis that an
algorithm is an abstract idea.
There is in mathematics a special kind of algorithms which can compute
everything which is computable. If we build a circuit to compute such an
algorithm we get a general purpose computer. In the ordinary computers we use,
the universal algorithm is the CPU instruction cycle. Some programming languages
rely on software implementation of other universal algorithms such as a byte
code interpreter.
Software is the input we give to a universal algorithm to obtain the computation
we desire. And the execution of the program is the computation of the algorithm.
When a patent claim reads on nothing more than the execution of the universal
algorithm then the claim is directed to mathematical computation.
There is no need to make a new algorithm for each different function. For a
simple example consider the function of doubling a number. We may add the number
with itself. We may multiply it by two. We may use an algorithm for addition and
put a constraint on its input, that the number must be added with itself. Or we
may use an algorithm for computing a multiplication and put a constraint on its
input, that one of the numbers must be 2. We have two algorithms for the same
function. If we look at it in terms of circuits, we may use a circuit for
computing addition, or a circuit for computing multiplication. We don't have to
make a circuit dedicated to doubling numbers.
This example shows that functions may be implemented by putting constraints on
the inputs of algorithms and/or circuits designed to do something else. We don't
have to make a new algorithm or circuit every time. This is what happens in a
general purpose computer. We use a universal algorithm and we put constraints on
its input. We use the instruction cycle of the CPU and its input is the program.[ Reply to This | # ]
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Authored by: Winter on Monday, June 11 2012 @ 01:39 AM EDT |
"It claims at its most basic the idea of moving the finger from letter to
letter on a qwerty keyboard. The motion of the finger is then captured (the
shape of the line), and matched against a dictionary of shapes for different
words. The system also compares for close shapes and suggests words that might
have been intended but the finger didn’t quite get to the correct keys."
The underlying model is well known. This is simply an application of statistical
systems like the (very) old Hidden Markov Model in recognizing temporal
sequences. It is the basis of all modern speech recognition and the Blast
algorithm used in genomics research. An alternative could be to use Artificial
Neural Networks (not as good for time series). Also well known from the 1980s.
These two types of data driven recognition methods are the staple of
"intelligent" recognition systems since the 1980's.
Many Secret Service type of eavesdropping systems since the 1950s use timing,
noises, and emissions of typing equipment to determine what was typed, eg, the
old Tempest system did that for telex.
What is actually *not* obvious? Maybe selecting the swipe movement of the
fingers?
Any CS engineer can build such a system when she is given the question
"Recognize words and ase the finger movements".
Why is that so mind blowing new that this should enjoy patent protection?
---
Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 02:02 AM EDT |
<blockquote>For that reason, I’m a firm believer that for many disputes it
is more efficient for the parties that have a stake in the matter to fight about
validity at the time of litigation. This increases costs on patent defendants,
but if examiners will not get the job done anyway, I would rather they not spend
a lot of time trying.</blockquote>
"This increases costs on patent defendants," The problem is that this
cost is there basically independent from the merits of a case. It is like
saying "This increases costs on SPAM recipients." There is no
protection against being a patent defendant, and if you actually do research
avoiding patents, you are liable to triple damages because of willfulness,
anyway.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 02:13 AM EDT |
Swipe is not entirely novel and it interferes with other work. For example, the
grafiti input method for Palm pilots (which also ended badly for Palm) is very
similar in nature to 896.
But to show that Swipe is not novel, when I first started using an Android
phone, I quickly realized that the problem with touchscreen input is that keys
are often missed in favor of other keys which are neighboring... indeed, it's a
problem with typing in general -- only moreso in the case of touchscreen input.
But I, as a non-expert in the field; a mere user, realized that in addition to
simple spell checking, input should be validated by proximity on the keyboard.
This is completely independent of sliding one's finger from key to key as that's
not the only way line patterns could be created. Indeed, by recording the
coordinates of keys until the space or return key is entered, "lines"
could be drawn in memory or not at all since it's not really lines which are
being used for comparison as much as the points described as
"direction" changes.
I believe it is completely obvious as I am not exactly a professional in the
arts. And isn't the test for novelty one in which the "invention"
must be one where a person skilled in the art would not come up with that
solution on his own?
In my view, the statement of the problem presents the obvious answer. The
problem is obvious and so the answer becomes obvious. But then you might
say/ask "Then why hasn't it been done before?" I can't say except
that I believe some spell checkers already take much of this into account...
just not all spell checkers.
[ Reply to This | # ]
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Authored by: sproggit on Monday, June 11 2012 @ 02:27 AM EDT |
Michael, thank you for taking the time to research and write such a
thought-provoking article for Groklaw. Whilst I can't promise to agree with all
your views on the subject, I'm grateful that you've taken the time to express
them in such a thought-provoking and educational way. I hope that PJ can
persuade you to continue to contribute.
So down to business. Having read the article and the top-line comments I see
that as a community we're already snuggling into familiar trenches of thought
and ideology. Rather than pick up on specific aspects of your piece to further
that paradigm, I thought it might be nice [to paraphrase something we quote
often enough] to advance an argument that may be "non obvious to one
skilled in the art"...
Instead then, let's consider this using political doctrine as a metaphor.
IMPORTANT DISCLAIMER: I am not an historian nor any form of student or history.
I am using the following as illustrative example. If I go slightly off-point,
please try and stay with the principle of the illustration and not get lost in
the detail...
In my counterpoint I am going to argue that there is a very fine dividing line
between the "state-sponsored monopoly" that is a patent and
"state ownership" for anyone who stands outside of that relatively
tiny portion of society that is comprised of government post-holders and patent
holders.
In the Communist ideal, a society cedes personal ownership to the State for the
common good. The State, in turn, determines how everything is organised and run.
Not wanting to compete with itself, the State may well have a single
company/factory producing tractors and another single source for televisions.
Designs are simplified and standardised to bring efficiency of mass production,
drive down unit costs and eliminate wastage [both effort and materials].
In the "Free Market Ideal" [for the sake of my response the mirror to
the Communist model], competition isn't merely permitted, it is actively
encouraged. The philosophy of free markets is that competition fosters
innovation by encouraging producers to continually refine and improve their
products and services to better serve their markets and customers.
The world has seen numerous examples of communist and free market economies
since the close of the Second World War. It is not lost on me that the United
States, a staunch advocate of the Software Patent Monopoly is also a staunch
advocate of free markets and opposed to communist ideology. I would like to
argue that, since 1945, nations that embraced free market economics have been
more successful than those which adopted the communist model. I would be happy
to measure "success" in a variety of terms, including affluence of
average citizens, productivity per capita, average lifespan, per-capita income,
etc, etc.
I find it somewhat perplexing to think that many people who believe passionately
in the democratic freedoms of what we often call "the West" are so
quick to embrace the idea of state-sponsored control through patents. Perhaps
it's because even those who argue in favour of patents don't see how that patent
system could be abused by a corrupt state... To me this just looks like adopting
opposing arguments at the same time... Is this what we want?
But more than that.
Suppose I have an idea for a truly innovative tractor. If I live in a free
market society I can build my design and take it to market. In a communist
state, if I tried to do anything like that, I'd be classified as a subversive
and told to stop. If I failed to obey the request I could be arrested. How is
this any different [in principle] from what we have today with patents? In much
the same way, if I am a "lone inventor" and have an idea for a
significant enhancement to a commonly used piece of software [say for example
the person who thought of adding tabs to web browsers] then in a software-patent
encumbered marketplace, I would be unable to get my idea to market because the
underlying browsers would likely contain restrictive software patents.
In other words, great ideas and innovation are stifled not because they are not
worthy, but because the inventor does not have the freedom to innovate: the
moment they go to market with a product they are jumped on. Patents *might* be
helpful when an invention is totally new, and works in a brand new field of
endeavor. Patents *don't* work in any market where innovation is incremental.
Software is, intrinsically, an "incremental" marketplace.
I would argue that this was *not* what the authors of the 1790 Patent Act or
House Resolution 41 had in mind when they drafted the original statute.
Whatever it's merits, the Patent Act has been peverted to the point that, rather
than fostering innovation, it is now having the exact opposite effect and being
used to create and maintain monopolies in many different fields of endeavor.
Patents have become a weapon to be used by those with established market share
and financial resources to "keep out" new market entrants and startups
through a "barrier to entry".
That was not the intent of the Patent Act, but, sadly, that is how it is being
used today.
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 03:26 AM EDT |
If one takes as starting point that software patents are here to stay (which is
probably realistic given that a change in legislation would be needed), these
are pretty useful suggestions.
The main one that I'd quibble with is the trade-off between examination and
litigation... IMO it would be good for everyone if the standard of examination
was raised, and with it the patent filing fees.
The suggestions around practical use and specificity are on the right track but
can we make them even tighter? Basic inventions seem to get proceesed into a
bunch of legalese the goal of which is to make the claims as broad and
impenetrable as possible. That is clearly wrong, as it hampers examination,
litigation, and use of the patent.
Since patents are (supposedly) descriptions of technical inventions, they should
be couched in technical language that is clear enough for an engineer to either
implement the patented invention or test their own design against the patent to
ensure that it is not infringing.
This would probably have the side-effect of facilitating patent workarounds (the
transformation into legalese was once explained to me as having the purpose of
blocking workarounds) but that is not a problem as something that is truly
innovative will by its nature have limited workarounds.
The other key change that would make a huge difference in the flood of junk
patents is to have a requirement that a patent remains "pending" until
the patentee has demonstrated an actual implementation (preferably in the form
of a prototype product) incorporating the invention.
I think that's the way the patent system works in South Africa (where I am
from). If you can't produce an implementation winside 5 years of filing the
patent, the patent lapses.
That would help tremendously with the patent logjam and also deal with the
problem of non-practising entities, all at once. The patent system exists to
promote the development of technology, and "sitting on" a supposed
invention is a hindrance to that progress.
Leading on from that thought, that is a test in its own right that could be
applied in both examination and litigation - is the patentee acting to hinder or
promote progress? If the patentee is not using the invention to contribute to
the progress of the "useful arts", they should not have any right to
act as a gatekeeper for that technology or inhibit others from doing so.
One last thought about the patent-pending phase... during this phase the
patentee should not have any monopoly, i.e. if someone else who has no knowledge
of the patent implements the same invention, that implementation cannot be
considered to be infringing. [ Reply to This | # ]
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Authored by: stegu on Monday, June 11 2012 @ 03:33 AM EDT |
I can agree with a lot of what you are saying, and I definitely think your
suggestions would significantly improve the situation. However, your proposed
solutions assume that a great deal of common sense and self-criticism should be
instilled in the processes for patent examination and litigation. Currently,
there seems to be absolutely no such tendency, because there is no incentive for
it. As long as the key players that are involved in creating patents (the patent
office and the filing inventors) are mainly interested in patents as a cynical
way of making money from nothing, and as long as the courts and the lawyers see
endless litigation over stupid patents as a source of income rather than a
fundamental failure, the system will never reform itself from within.
I think that we might need at least a threat of completely revoking the patent
rights for software-based inventions, to instill a sense of impending doom in
the PTO and the "inventors" filing all these junk patents. Without
that imperative, the system will most likely continue on its runaway path.
People are not good at seeing the big picture and aiming for long term benefits
on their own accord, certainly not as long as they can make money from being
short-sighted. The patent holders, the patent lawyers and the patent examiners
are not going to see the error of their ways before it is much too late.
I guess my question is: who should force this fundamental change on the actors
in the farce that the patent system has become, and how? Courts seem to act very
slowly, and they are quite naturally reluctant to take actions that would
effectively invalidate 95% or more of all software-related patents.
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 03:35 AM EDT |
1) Why does poorly written software make my life an existential hell?
2) Why
does that so-very-abstract compression algorithm save me oh-so-
very real disk
space and network bandwidth?
3) Why does heavy computation of all that
abstract stuff make my PC go all
hot and whiny?
4) Why don't we have
working examples of other abstract ideas, like jetpacks
and flying cars? (Oh
wait, you mean those are ABSTRACT abstract ideas, as
opposed to "only" abstract
ideas as covered by the Swype patent?)
5) Why do I need a computer to run my
games at all? Shouldn't I be able to run
it all in my head?!?
BTW, I
commend mrisch for stepping into the lions den like this. I too have
undertaken
such foolhardy endeavors, albeit only in the comments section, in
the past (and
am doing so even now!) [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 04:06 AM EDT |
What does society gain through software patents?
Inventions are not disclosed. The things are written in bizarre lawyer-speak and
are ridiculously general and vague. No source code is included. They are almost
completely useless from a practical point of view when it comes to figuring out
how software works. In any case nobody dares to read them for fear of triple
damages.
They don't offer an incentive for invention. You invent something and you'll get
sued by someone else who wrote a patent earlier that looks vaguely like your
invention. You'd be safer opening a burger restaurant than trying to invent new
technology these days. At least the patent on burgers has expired and nobody is
going to sue you over it.
What is society supposed to gain by allowing these licensed monopolies? I see
lots of talk about tweaking the system to try to minimise problems. But the
basic issue is that there is no point to these things. No advantage at all as
far as I can see to having them. Patents are nothing but a work scheme for
lawyers.[ Reply to This | # ]
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Authored by: Ian Al on Monday, June 11 2012 @ 05:25 AM EDT |
Note this comment I got at PatentlyO from an engineer/patent lawyer
in response to the above statement: “ALL software is a specification of
hardware. ALL software is run very differently on different hardware and is
written for specific hardware platforms. Software is hardware in every sense
that matters for patents.â€
Here was my response: “Of course you are
right that software has to be written and compiled for specific hardware... The
issue is that patents aren't for specific implementation of specific solutions
on specific hardware. It's that patents claim general steps to solve general
problems (or sometimes specific ones) on general hardware.â€
In
fact, there are no software patents. 'As a general rule, where software
constitutes part of a best mode of carrying out an invention, description of
such a best mode is satisfied by a disclosure of the functions of the software'.
(Fonar Corporation v. GE). Just because the patent declares that a system
comprising a computer with a memory is the best mode does not excuse the patent
holder from patenting the functional elements of the best mode rather than an
invention for which software is the best mode. The USPTO should look for prior
art for the claimed functions amongst all the likely implementation modes and
not just software artifacts. If the invention can only be found in a software
solution, then it is almost certain to fail many of the tests set by the Supreme
Court.
Software source code is not written to target the computer
hardware. I have two computers that can run Windows; an Intel Atom based
computer and an AMD Athlon four core computer. Windows has to have hardware
drivers and BIOS to suit the OS and to provide the link to the specific
underlying hardware. However, the only reason that both my computers can run
Windows software is that the processors share a common implementation of a set
of mathematical algorithmic machine code instructions. The software written to
run on the OS has to be compiled to run on the shared X86 instruction set, but
the source code is hardware agnostic. If the patent is on the programmer's
source code, then it is on a set of functions that are unrelated to the
underlying hardware. None of the 'software patents' I have seen make any
reference to specific hardware, quite the reverse. In Oracle v. Google the
'patented' Java software runs on mainframes, desktops, laptops, mobile phones,
tablets, televisions and MP3 players (I might have made the last one
up!)
von Neuman came up with an electronic implementation of an
abstract mathematical idea of Turing for a universal device that could execute
any math algorithm. The mathematical set of algorithmic instructions in computer
processors continue to be just that; a set that can execute any program of math
algorithms. Two early uses were to aim guns and to pay employees. It does not
change the fact that every bit of software is a math algorithm manipulating
binary symbols. It is only us applying abstract ideas to that process that makes
computers appear to do something else. Computers only do math. If there is
patentable subject matter in there, somewhere, then the patent has to show what
it is. A magic trick appears to be what it isn't. What computers appear to the
courts to do is just a magic trick employing the software arts.
The
last case we considered on Groklaw was for the Java system. Neither the source
code nor the compiled code has any relationship to the underlying hardware. The
same applies for Dalvik applications running in Android.
I thought
I would give an example of a patent I find potentially meritorious... Patent
7,098,896 [claims] for continuous stroke input on a keyboard is the type of
software patent that the system should protect if it is otherwise
valid.
This patent, owned by Swype, was filed in January of 2003. It
claims at its most basic the idea of moving the finger from letter to letter on
a qwerty keyboard. The motion of the finger is then captured (the shape of the
line), and matched against a dictionary of shapes for different words. The
system also compares for close shapes and suggests words that might have been
intended but the finger didn’t quite get to the correct keys.
Is this
math? Absolutely – it encodes data about the touch and does a mathematical
comparison. But it is so much more; it provides an interface from my finger to
the touch keyboard to the words on the screen in an incredibly efficient and
useful way.
This is not a software patent. Software is (today)
probably the 'best mode of carrying out the invention'. The description of the
best mode 'is satisfied by a disclosure of the functions of the software'.
However, any compentent engineer could implement the invention much more cheaply
and efficiently with an asic or an FPGA. No processors would be harmed and the
invention implementation would be much better. There has to be a chip to encode
the keyboard into computer readable key codes. That is the best mode
implementation of the invention and not the processor receiving the
keycodes.
I use the automatic gearbox for a vehicle as an example of an
invention for which there may be several 'best modes' including a stored program
control computer.
If the chosen mode is mechanical, then the patent is
on the arrangement of gears, actuators, clutches
and the control mechanism. The
invention is the arrangement of the components
and there may be some novel
components that warrant a patent in their own right.
You cannot make a stored
program computer into an automatic gearbox.
You can replace the
control mechanism with a computer that electrically
interfaces with the
actuators. What is patentable is the whole device and not
the components. If
the original control mechanism was patentable in its own
right then it would be
the precise control function that would be patented.
Doing the
precise control function with a computer should be equally patentable.
The
software/software function would not be patentable, only the
computer/electrical interface/controlling function combination. Most automatic
gearbox control mechanisms will not be any more patentable than the gears they
manipulate so that even the special purpose computer assembly would be the
patent equivalent of a standard nut or bolt.
Both the keyboard
invention and the gearbox invention have significant post process activity. The
Supreme Court said in Flook and repeated in Bilski that a lack of significant
post process activity made the invention abstract ideas. Flook changed the alarm
limits in a real world industrial process and the court found that this was a
far cry from the significant post process in Diehr that produced precision,
cured, rubber components. Although the Supreme Court said they disapproved of an
exclusive machine-or-transformation test, they still leave the test as useful
for determining patentable subject matter.
In essence, I agree that
Benson, Flook, Diehr, Bilski and Mayo provide an existing framework to exclude
invalid 'software patents', I see no readiness in the courts to acknowledge the
Supremes repeated and pointed demand that this framework be respected. The USPTO
never challenge the patent assumption that a system comprising a computer and
memory is the best mode and never look for other modes for prior
art.
In Fonar Corporation v. GE the court said 'It is well established
that what is within the skill of the art need not be disclosed to satisfy the
best mode requirement as long as that mode is described. Stating the functions
of the best mode software satisfies that description test. We have so held
previously and we so hold today'. The patents in Lodsys, Oracle v. Google and in
the software part of the 'mobile phone wars' are monopolising a considerable
portion of the functions used by the software programming art when the patent
has no real world post solution activity such as your keyboard and my auto
gearbox.
The only patent that was not invalidated in the
Oracle v. Google case was a patent on resolving references to functions with
text labels just before the program was executed as opposed to much earlier in
the source code compilation process. That is a software art function that can
only be about the software and not about some patentable
invention.br --- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 07:33 AM EDT |
Does that mean I can patent a piece of music on a CD or in an MP3 file? [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 07:45 AM EDT |
The small inventor does not have the means to avoid a court fight by waving
around a portfolio, and a court fight against a large company, even if they
don't find some funny counterclaim in their portfolio, will render him bankrupt.
Never mind that he actually was the one creating new value.
For
the large company, patents are not a principal source of income, they are just a
somewhat ambivalent bartering mass exercised in the course of doing
business.
Since the patent system realities have perverted to a state where
inventing things poses existence-endangering financial risks for the
non-manufacturing small inventor outweighing the incentives, and since it favors
companies specializing in patent litigation rather than invention, it does more
damage than good.
Software patents here are much worse than mechanical
engineering patents since
The protection duration outweighs the time of
usefulness.
Basically any non-trivial piece of software can be
considered infringing on existing patents, whether meritous or not.
In
the practice of software, this means that you are usually prohibited from
reinventing the wheel, because most forms of the wheel are covered by some
patent, or at least the usual patent portfolio will provide enough vaguely
matching claims to render you bankrupt in court if you don't fall in line, long
before a verdict will be made.
So if a "settlement" is offered, you better
bow to the blackmail. [ Reply to This | # ]
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Authored by: globularity on Monday, June 11 2012 @ 08:27 AM EDT |
Well for me patents in general are bad I am an abstract thinker with a sound
background in Chemistry, Electronics Mechanical systems and well up on
industrial history. I would argue that less than one in ten patents is anything
other than work product, given a similar problem somebody of ordinary skill in
the respective art would have come up with a solution, maybe the same maybe
better.
Now down to the software patents.
Obviousness, Abstraction of communication systems has been taught for many years
yet time an time again we get patents issued with claims like, using wireless or
using the internet as if this is an inventive or distinguishing feature it can
and has been proven that any layer in a communication stack can be replaced with
something else of equivalent function. This goes much further than computers it
is a general result of abstraction of function From a mechanical perspective it
is as silly as saying using a 5/16" bolt or using an M8 bolt both have the
same function.
Another absurd feature of the US patent system in general which causes problems
for areas with vaguely worded patents is allowing the plaintiff to sue based on
what they claim the patent to mean. The USPTO issued the patent on what the
USPTO thought the patent meant not what the applicant intended. What the
applicant intended may not have even been patentable. This anomaly encourages
vague poorly worded patents and could have someone being sued for infringing
something different to what was patented which also may be something different
from what the inventor invented. This is called an update anomaly in database
systems. It is probably called an employment scheme in legal circles.
Allowing applicants multiple bites at the cherry is another problem. Imagine
someone invents something and gets their patent application rejected so they get
a chance to reinvent it with the benefit if hindsight. Get it right first time
would be an incentive for precise carefully worded patents of narrow scope at
the very least it should be sent to the back of the queue with no reset of the
clock.
Mentioned was the "inventions" enabled by new technology at best they
can be called a liability, new technology enables new functionality new
possibilities are opened up, this is low hanging fruit which should not be
locked up by patents, of more value are novel ways to use mature technology.
To give one example, a US patent was issued on maintaining constant surface
speed during as metal cutting process by reading the cross slide position and
telling the variable speed drive on the spindle to change speed. Machinists had
been aware of this mechanically for a century prior it was the availability of
electronic measurement and variable speed drives which automated the function.
Hardly inventive, due to the late application years after the technology was
available, mid 80's there was abundant prior art in use yet a patent was issued.
It was so obvious no self respecting engineer would have thought of patenting
it, much of software is like that which is why there is so much derision of the
USPTO from writers of software.
Imagine the fuss if authors started patenting plot elements or lawyers patenting
defense strategies. Why should society be burdened with these artificial
straitjackets. Software was written before patents, Authors do not need patents
to write stories and lawyers do not need patents to come up with come highly
creative arguments.
---
Windows vista, a marriage between operating system and trojan horse.[ Reply to This | # ]
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Authored by: HP on Monday, June 11 2012 @ 08:36 AM EDT |
To operate software the principle of input -> processing ->
output has to be followed.
For software to be patented the
processing part has to be defined correctly: Input will be
modified by processing in a well defined, correct way to create
output.
The well defined and correct way for that matter is
the patent application.
The prove of correctness for the
processing step can only be done by mathematical methods.
Hence, processing in it's very own is math, albeit written
differently than we did write math in school.
Conclusion: Software can
not be patented.
What frightens me is the fact that software patents
would require complexity and uniqueness which is contrary to the need to prove
correctness. Patented software then will be put into production with hard to
prove or even unproven functionality.
Are the implied risks for the
public from unproven algorithm worth any software patents?
--- hp [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 08:45 AM EDT |
I wrote this elsewhere 2 years ago, that a very big part of
the overall problem is the USPTO and how they are doing (or
NOT doing their Jobs). This is all straightforward stuff.
What this is all about is *politics*, it is a political
problem that the USPTO is organized and executing in a
Kafkaesque manner.
Of course there are also deeper Philosophical issues about
patents and about the theme of granting these kinds of
monopolies and if this is truly beneficial to society. BUT I
don't actually believe that is really the problem at hand.
The problem we face right now is a political one.
Fortunately some Judges in this system seem to be wisening
up to whats going on here and beginning to take a
significant harder line. I hope that trend continues. [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 08:49 AM EDT |
Thank you for this article - it is an interesting contribution to the patent
debate.
On one point I can agree with the author: it is difficult to
delineate "abstract ideas" from tangible inventions without ambiguity. Yet I
cannot fully agree to the proposed solutions, and also believe that the problems
specific to software patents are insufficiently discussed.
Let me first
address the problem analysis. Unltimately, the justification of patents as a
legal construct as well as the attitude toward patents by engineers and
companies is driven by economic analysis. At a fairly extreme end of the
spectrum is the position of Boldrin and Levine ("Against Intellectual Monopoly")
who argue that economic analysis speaks against patents as well as copyright at
all. While am am personally reluctant to fully subscribe to their position (in
particular with regards to copyright), I believe that this type of economic
analysis is sufficiently compelling to require an answer, especially by someone
who is out to fix the patent system.
Specifically with regard to software
patents, however, economic factors weigh heavily against patents. In most
tangible products, there is at least a rough correlation between value of the
product and the number of patents which are touched. This is simplest to see
for drugs: often, there is only one (or a small number) of drug components.
These are relatively easily searchable and negotiable among a fairly limited
number of players. The situation is more messy, but not fundmentally different
for complex industrial products such as cars. Many patents concern specific
functions such as breaks or transmissions, so that there is again some very
approximate proportionality between the patent surface and the number of
functional components. With software, things are very different because of the
strong trend to integrating previously separate functionality into new software
products or collections (think smartphones). There is almost no correlation
between the physical value of a product and its patent exposure and the tendency
to bundle and to extend the software stack vertically makes it very difficult to
assign a fair value to any one patent. The value of many of today's patents is
closer to the cost of defending against a claim or the potential loss of income
due to an injunction than about quantifyable value of the invention as such. I
very much doubt that the (clearly sensible) suggestions by the author would
alter this assessment fundmentally.
The second problem is that of
interfaces, software interfaces as well as human-machine interactions. Both
have the property that they are easy to work around, technically speaking, but
with an obvious cost to society. Interface patents are also an extreme example
of the situation that patents protect the established market player at the
expense of newcomers, which, in its own right, is undesirable. An interface
patent is valuable only if you already have a dominant or at least strong
position in the market. So I think the interface problem needs to be addressed
explicitly, which the article does not do.
Turning to the author's
suggestions: Using "utility" as a criterion for patentability seems elegant, but
would create new problems as the cited continuous stroke input patent
illustrates nicely. Suppose I was a researcher in machine learning (which I am
not, but I know a thing or two) who has a nice generic classification engine
running. Now I see the drawing on the front page of the patent which makes the
interface component of the idea very clear. Now the hard part is of course the
classification engine, but that's what I already have. Now, is the interface
part patented, so that I would violate the patent now matter how my engine
works? But then it would be a pure interface patent, with all the associated
problems which I strongly believe that, as a society, we should find
undesirable. Would I need to understand the suggested implementation to see if
my engine is doing something similar? But my engine is older than the patent,
so what if the underlying algorithm is the same? Would that then invalidate the
patent? But if so, I admit to not having had the idea of hooking up my engine
to the screen input device. I got the idea by looking at the front page of the
patent and then it was clear to me. I don't think the idea of "utility" helps
here. My engine was not practically useful - I maintained it to do fundamental
scientific research on machine learning. So clearly I wasn't doing anything
useful in the sense of "utility" and did not patent my engine. On the other
hand, the idea embodied in the figure of the front page of the patent itself
should not be sufficient to obtain a patent, it lacks a written description and
a best mode, which the author also emphasizes. So what if someone had taken my
engine (published under a free license on my website, say) and filed the patent?
What if someone had done an independent implementation of the same algorithm
and filed the patent, later I use my engine to the same effect? What if someone
had done an independent implementation of an independent algorithm, and I then
use my algorithm with the same user-facing effect? What if the patent writer
had read my papers and concluded that there is an algorithm that works so-and-so
and can solve the problem, but hadn't actually bothered to go to my web page and
try it out again, and then I am the first one to actually get a truly working
implementation?
I don't think that any of these questions have a clear-cut
answer except if one argues against software patents in a broad sense
altogether. Any other argument will have a huge gray area even with a
supposedly "meritorious" patent (I agree, it's better, especially better
written, than a lot of software patents I have had the displeasure of having
looked at). But that brings us back to the initial question: is the cost
associated with living in a system where even supposed best-practice examples do
not seem to lead to clear answers given the highly incremental nature of
software development maybe much larger than the economic benefits (unless you
are a patent lawyer).
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 09:11 AM EDT |
The utility argument needs some software develop process
influence e.g. from use-cases.
Who is the actor for whom the utility is considered? Is
utility to another software developer not utility?
It would be hard to argue that a new design for an diesel
engine cylinder head shouldn't be patentable, but without the
rest of the engine it has no utility.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 09:44 AM EDT |
I appreciate your arguments, but I must strongly disagree.
I have been writing software and programming computers for
over 30 years and continue to do so even in my retirement.
I have never applied, and never will apply, for a software
related patent. They are just plain wrong. Writing
software is just a means to solve problems using a computer.
There are no great discoveries. Just ones own thoughts and
reliance of those who have been kind enough to share their
ideas through books, conversation, or source code.
Consider your first example. What was patented? It
sounded like a general way to figure out what someone meant
to type. If it had been for a very specific method such
that other methods were indeed possible, it might have
merit. But, it basicaly excluded any and all other
specific methods that someone might come up with. It is
just too general. How does excluding anyone from solving
the same problem promote innovation and the progress of
science?
How many patents are there for shovels? Is there just one
such that every shovel manufacturer has to get a license to
make any kind of shovel? I seriously doubt it.
My own opinion is that software should never be patentable.
It already has copyright protection. That is enough.
Writing code is no different that writing any thing else.
It is a language used to express an idea. So what if it
causes bits to change? When an effective speaker gives
a speech, they cause people to have new ideas or change
their thinking pattern and modify their behaviours. Why
isn't that patentable? How about legal arguments?
Software patents also prevent free speech and thus violate
the first ammendment of the US Constitution. They in effect
prevent people who write software from using their code and
thus prevent them from freely expressing their ideas using
a computer.
On a good day I probably write original code that infringes
at least one software patent, if not more. I'd say that
is true of any experienced programmer who is writing
software regardless of why they are writing it.
Why is doing something so ordinary as writing software deserve such protection
that it puts the common programmer
in jepardy of being sued? How do you reconcile that? You
can not. No one can because writing code is excersizing
free speech.
Finally, you do realize that your "changes" will never
happen.
All this patent bru-hah-hah is only about lots and lots of
money, making people rich from the labors of others, and
keeping the wealthy wealthy. Nothing new about that. All
the oratory and speeches will never change a thing.
Agruments for software patents are only there mollify the
disenters and to reinforce status quo. Arguments against
are ignored or cast as being to extreem because those who
are getting rich from software patents have too much to
loose.
Sadly, regardless of your, my, or anyone elses arguments,
nothing is going to change for the better with respect to
software patents. They will continue on as they are or
just get worse especially if it means puting even more
money into some wealty persons pocket. History has shown
us that over and over again that those who can make a
difference are loath to do so because they have too much to
loose. You know the old saying: "Those who do not learn
from history are doomed to repeat it."
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 10:00 AM EDT |
There's a large community of software developers that invents and
distributes
software at extremely low cost: Open Source software is usually
free and mobile
apps cost less than a coffee. This community creates enormous
social value.
These developers do not benefit from the patent system
incentivizing
disclosure
of inventions, but they are harmed by patent suits
because they do not have the
resources to defend. Software patents form an
existential threat to them.
Professor Risch, if there was a way to
remove or protect this community
from
the rich man's game of patents, I think
your suggestions would fix software
patents. Otherwise, your suggestions still
form an existential threat. Are
software patents worth the social cost? [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 10:01 AM EDT |
Thanks for providing a thoughtful and detailed look on how
some software patent concerns could be addressed under
existing law.
Something's going over my head though: how does this help?
To me the two main issues are (i) nonpracticing firms
attacking large companies and (ii) large companies shutting
smaller companies down that can't afford to litigate.
Applying precedent and law in the way you suggest might
_eventually_ help with both of these issues by thinning the
patent pool; that looks like a very long and astronomically
expensive cure. Would you mind elaborating on why that's
preferable to addressing the issues with new legislation (or
a significant new ruling)?[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 10:27 AM EDT |
If we are going to continue to have software patents, how can we minimize the
damage that they cause to competitiveness while providing some reward to the
inventor? While I would rather not have software patents, I don't think they are
quickly going away.
Some suggestions:
1. Eliminate injunctions as a tool for software-related patents. No injunctions
from either the ITC or Federal courts. This will encourage monetary settlements
rather than "swinging for the fences" (a baseball term implying a high
failure risk/high return approach).
2. No royalties on software provided as FOSS. Let the proprietary companies
figure out how to deal with royalties in their proprietary software.
3. Royalties calculated on actual value added to entire solution, not in an
abstract sense. Especially in light of the Motorola/Apple case, junk patents
won't be worth filing. Also, the royalties should be on a decreasing scale, as
they typically become a smaller part of the value of a solution over time. For
example, had Google infringed on one of Oracle's patents that improved
performance, the royalty might have been based on how much a faster processor
and bigger battery would have been needed to get a comparably performance
device.
4. Some lower cost mechanism for determining royalties is needed short of
clogging Federal courts and requiring expensive lawyers.
5. Eliminate treble damages for willful infringement.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 11:13 AM EDT |
Thanks again, Michael, for your paper. It has released a
plethora of comments, and I'm glad to see some of our
regular contributors are a lot less long-winded than before
(a complement, not a criticism), or should I say 'more
succinct' {:-)>
Let's step back a little. Many years ago, when one could
physically look up patents in a big library(!), I researched
a particular class of patents, the nature of which is
irrelevant. They were mechanical and electrical devices.
The point is this: ALL were easily duplicated by anyone (me)
skilled in the art. The drawings and description were very
easy to follow. Now, years later, I still see these patents
referenced by newer patents of similar devices. Of course,
these newer devices are more complex, but still capable of
being duplicated. The patent author did his job, and the
examiner only had to check each reference for infringement,
and, if appropriate, grant the patent. THIS is how the
system is supposed to work. I believe the anti-patent
positions are well-argued, but the whole patent/anti-patent
discussion has gotten WAY out of hand, and way too complex,
even for those of us skilled in the art. My challenge is
this: How do software patents fit into the original patent
scenario as described above? If they don't fit, what
arguments can be made for continuing to patent software?
(My conclusion is: none. S/w patents are a con game, a
lottery, benefiting no one.)
Albert The Un-Registered
[ Reply to This | # ]
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Authored by: PolR on Monday, June 11 2012 @ 11:36 AM EDT |
It appears to me that this proposal is targeted at improving the merits of the
patents being granted by a better application of the current mechanisms of
patent law. But how did we get to the conclusion that the problem of software
patents is too many patents without sufficient merits? Is this really the right
problem to solve?
Before State Street software patents we few and far
between. But software as in industry thrived. From an historical perspective I
see no reason to believe patents are needed of their lack has limited innovation
in any way.
The practice of sharing software in source code form has a long
history. It predates the terms "free software" and "open source". These terms
refer to the codifications of this ancient practice accompanied with a legal
framework for the copyright licenses. However sharing of source code has helped
innovation and the advantages of sharing give a strong incentive to disclose the
invention. Source code is disclosure. Working source code which is actively
maintained by developers is disclosure which is guaranteed to match exactly what
works in practice and which is kept current as the invention is improved. No
patent can match this.
Many business and legal people think of FOSS as a
fringe movement. But when we look at which technology has been developed and
disclosed by means of sharing source code it is clear that this is not
fringe.
- The UNIX operating system, especially BSD Unix
- the X-Window
graphical user interface
- The TCP/IP protocol stack
- The world wide web,
including protocols, browsers and web server
- Several programming languages:
C, Perl, Python, PHP etc
These technologies are of paramount importance
and they are among the most important innovations in software.
Here we see
an argument on how patent help innovations based on a data entry method by
swiping on a touch screen. Why do we need patents to get such innovations when
we can get the Internet and the world wide web by FOSS methods?
Here we have
a proposal which:
- Acknowledge that the patent system is dysfunctional,
ie issue many bad patents.
- Brings up a proposal to cure the
dysfunction.
- Success is uncertain. If the system is dysfunctional now, how
can we be sure we will succeed in making things better?
- If successful the
improvement is that the newly issued patents will be more meritorious according
to the standards of patent law and this is believed to make the patents more
meritorious period.
- We don't know how long it will take to get the patent
system in proper working order of even if we ever get there.
- It is unclear
how the current inventory of issued poor patents will be handled and how long
they remain into effect.
I agree this plan will lead to some improvement
over the current situation, although I question how big an improvement this will
be. But why should this be the situation we aim for? Patents are not just about
providing incentive to innovators. They also impose liabilities and litigation
risks on everyone else. In the best of scenario, this proposal means
that:
- The playing will remain tilted in favor of those who can afford
the legal costs of patent litigation.
- Licensing requirements for patents
will remain incompatible with FOSS licenses.
- The development models which
has led to the innovations mentioned above will bear all the inconveniences of
patents with none of the advantages.
The argument in favor of software
patents should not compare with absence of intellectual property protection and
absence of disclosure. It should be based on whether there is an incremental
improvement over the situation that
preceded State Street taking into
consideration the effect of liabilities and risks on FOSS developers.
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 11:36 AM EDT |
: “ALL software is a specification of hardware. ALL software is run very
differently on different hardware and is written for specific hardware
platforms. Software is hardware in every sense that matters for patents.â€
Your patent lawyer friend is simply wrong. Software is not a hardware
specification. Software is not written for specific hardware platforms (hardly
ever, anyway). Software is not run significantly differently on different
hardware; to the extent that it is run differently, the hardware hides the
difference from the software programmer. Software is not hardware in any sense
that matters for patents.
Your problem, Mr. Risch, is that you have been listening to people who don't
know their facts. Bad facts make bad law -- false "facts" make worse
law.[ Reply to This | # ]
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Authored by: David665 on Monday, June 11 2012 @ 11:56 AM EDT |
From a political view point I always thought the problem was directly related to
funding.
The patent office has to increase patent filings to have funding. Thus award
more patents enticing others to file. Patents that get challenged also collect
fees so a proper combination of accepting bad patents will not only increase
fees for new patents but increase the challenges so a perfect balance will cause
a corresponding increase in revenue allowing ... more patent examiners.
Since this is about software GOTO top.
The cycle is complete. :-P[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 12:06 PM EDT |
How does patent law distinguish between the two?
As you know, computers are machines that take specific inputs called software
and produce specific machine outputs. The inputs, though large, is ultimately
nothing more than a pattern of 0's and 1's.
Theoretically, then, ALL POSSIBLE software can be derived randomly. Therefore a
set of inputs that outputs something useful is nothing more than a discovery.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 12:16 PM EDT |
It's useful to separate out the ten separate problems with software patents.
I've sorted them from most broad-rangingly problematic to smallest; even the
smallest of the ten problems is enough to wreck the nation's computer industry,
but fixing the larger problems would solve the smaller ones.
(1) At least outside pharmaceuticals, patents harm industry, period. (The
economic literature is clear on this.)
(2) Software is fully abstract mathematics and as such patenting it preempts the
use fundamental laws of nature and is invalid according to all precedent.
(3) Software is fully implementable in pen and paper and as such patenting it
patents mental activity.
(4) Software does not "create a new machine", so all of the software
device patents are invalid.
(5) If you consider a "process" patent for software, this can only be
violated by RUNNING the software, so that ALL the patent lawsuits actually filed
over software "method" patents are invalid: it is not possible to file
primary infringement lawsuits against a seller or distributor of software, only
"inducement" of infringement.
(6) Software processes are not "industrial", so in general the process
patents are invalid as business-method patents anyway.
(7) Actual software patents are generally on obvious mathematics, not difficult
mathematics.
(8) Actual software patents are practically always on unoriginal mathematics in
the prior art.
(9) Actual software patents *always* fail to disclose the implementation
(where's the source code?)
(10) Actual software patents frequently attempt to patent all possible solutions
to a problem, not a particular solution.
If you allow mathematics to be patented, you still have to fix problems (7)
through (10). But you shouldn't allow mathematics to be patented -- precedent
says mathematics is NOT patentable -- which will fix (2) through (10). Fixing
(1) entirely requires actually changing patent law to reduce patenability.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 12:19 PM EDT |
Because patent examiners have limited resources and must err on the side of
granting the patent when unsure, the burden of proving validity (and related
costs) thus shifts to the accused infringer.
One possible fix is to "crowd source" patent examination where a
voting system is used to determine validity.[ Reply to This | # ]
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Authored by: miltonw on Monday, June 11 2012 @ 12:34 PM EDT |
I realize the Supreme Court has said that algorithms are
unpatentable. My view is that this is an untenable solution, because every
process patent is an algorithm, mathematical or not. And it can't be that every
process is unpatentable.
You make the claim about software that "it
can't be that every process is unpatentable" but that's not a good starting
point. That isn't a given, that isn't proven. If you use that as
your starting point, you are already half-way down a road that is causing lots
of problems.
You give, as evidence that software can't be unpatentable,
one "valuable" software patent. But that doesn't excuse all the harm that is
done by software patents.
Then, you try to deal with all the problems
that software patents cause. Realistically, no one is going to implement
all the fixes you propose. So, in the real world, following your idea, we're
going to be left with software patents and all the harm they cause.
In
the alternative, we don't allow software patents, we invalidate
all those patents and all that harm goes away.
Would there be
some harm because some "valuable" software isn't protected? Maybe. But there
are lots and lots of very valuable ideas that are not protected by
patents, and the world survives, companies that created those ideas
survive.
We don't need to protect every "valuable idea" with
patents. Really, we don't.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 01:42 PM EDT |
It took me a while to find it buried in about the fifth
paragraph, but I think we agree: the most pressing problem
with software patents today is that most (all?) of them are
totally bogus non-inventions, stuff that was already known
in the prior art. Your primary solution, if I understand
you:
>it is more efficient for the parties that have a stake in
the matter to fight about validity at the time of
litigation.
You go on to say that the patent office can't be expected to
do its job, i.e., weed out such bogus patents, at least as
long as it continues to be (under-) funded in the ways that
it is.
It seems to me that these observations lead to a very simple
legislative improvement:
ABOLISH THE PRESUMPTION OF VALIDITY. [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 01:47 PM EDT |
I'm retired. Over 50 years in the computer software and hardware business.
Physicist with minors in math and EE. Have done things that were patented. They
were all physical objects, not "writings". That is, the patents spoke
about actual physical object. In the olden days one would bring an actual
physical object to the patent office. Nowdays one needs only to bring a
description of that object.
So it is with a software "patent". One brings a CD, DVD, tape,
or paper with the software on it. The physical object is simply a means to bring
the software to the patent office. Does it contain "the software". No,
it does not. It contains representations of the software, descriptions of the
software, explanations of what the software does. The software is in no way a
physical object. I have heard over and over the concept that "software
turns a general purpose machine into a specific physical object." This of
course is silly. It does no such thing. The general purpose machine remains a
general purpose machine. The software is simply a set of instructions ... ideas
... abstract ... non-physical. Protect it via Copyright? No, that makes no
sense. Protect the description of the software, the source code or the
specification of the software? Certainly. Those are documents no different than
a novel or a short story.
In my view what is needed is a new "thing". Not a Patent, not a
Copyright, but a specific form to protect intellectual property, i.e. ideas.
--- Retired Hacker.
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 01:59 PM EDT |
I also agree with you that arguing about the abstractness of
software (i.e., whether "software is math") is a waste of
time, but for totally different reasons. I think it's both
politically impractical and largely irrelevant. Nothing in
the statute says that "you can't patent math", as the term
"math" is understood by the folks who say that "all software
is math".
But you are dead wrong about "software is written for
specific hardware", and mostly wrong about "software is
executed differently on different hardware" (well, it is, at
a low enough level, but that's not the level that's being
patented).
Any computer-science major will tell you that software and
hardware are "logically equivalent": they set of
calculations possible to perform in software is the same as
those that can be done in hardware. Furthermore, any
hardware circuit can be simulated in software, and any
software program can be implemented in hardware. The choice
of hardware vs software comes down to economics (cost and
development time vs reliability and performance). You
*could* implement Linux in a single hardware circuit, but it
would be a big effort. You could emulate a Pentium in
software, but it would run too slowly to be useful.
Drawing a subject-matter line between "software" and
"hardware" is not always easy, but it's not the end of the
world. It'd be a big improvement compared to the insane
stranglehold occupied by software patents today.
Bottom line: you correctly identified the most pressing
problem (non-novel patents), and you acknowledge that the
PTO cannot ever be expected to do the job of enforcing
standards of novelty, but then you go on to suggest tighter
enforcement of those same standards??? You mean at
litigation, after a patent issues? Sounds like a money-
making proposition for patent lawyers, but why on Earth
would that be a good solution for anybody else?[ Reply to This | # ]
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Authored by: dwheeler on Monday, June 11 2012 @ 02:43 PM EDT |
This is a very interesting article. My thanks to Michael Risch for writing it,
and to PJ for posting it.
However, it is fundamentally not convincing to me. The proposed example of a
"good patent" is an example of the PROBLEM. If this is the best
example of a "good software patent" then we need to eliminate software
patents immediately (and we do). This example is a proposal to patent
understanding text written continually. This is just handling cursive writing,
but with the letters placed on a keyboard. That doesn't seem innovative to me,
it's spectacularly obvious to anyone skilled in the art. If fact, many
16-year-olds can probably think this up. What's more, I see no evidence that
there is a social advantage to granting a 20-year monopoly to this and related
ideas. There is good evidence people will write and implement this code even if
no patents exist. In fact, it will probably be implemented more widely WITHOUT
software patents.
This essays leaves the real issue unaddressed: Patents exist to "promote
the progress of science and useful arts". There is no evidence given in
this essay that software patents actually promote progress. Indeed, no evidence
has, to my knowledge, ever been shown (other than "proof by repeated
bluster"). Hence, software patents are unconstitutional.
Another problem: Leaving the software patents for COURTS to decide is completely
wrong-headed. Software developers cannot wait to develop software based on the
speed of court cases. The Microsoft/Novell case is still going on, long after
it matters. And if the patent office cannot do its job, why have one? Why not
abolish the patent office entirely? If we got rid of software patents and
business patents, the PTO would no longer be overwhelmed, and instead be able to
actually do its job.
Now I would agree with much of the rest of the text: If it is impossible to fix
the patent system to meet its constitutional mandate, but we must instead accept
that software patents will continue to harm humanity, then various mechanisms
(like this) to enforce the dead letter of current rules would certainly help.
If we must be stuck with the bad system, clearly forcing actual novelty in
software patents would be an improvement. I'd even be happy to help those doing
so. But let's be honest: these would be improvements because they would reduce
the number of software patents, which are the problem. When "0" is
the right answer, making the (nonzero) number smaller is a good thing. But that
approach still just works around the edges, helping instead of solving the real
problem.
I'm not against all patents. A process that involves a permanent change of
material (e.g., rubber processing), does make sense to patent. But when there
is only processing of information into other information, those should be out of
scope of the patent office, whether there is a computer involved or not.
[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Monday, June 11 2012 @ 02:44 PM EDT |
One of the most effective ways of limiting the damage from bad patents would be
to require an actual implementation of of the patent. That is actual code that
can be run on an actual computer with appropriate peripherals. This would enable
litigants to see what the inventor was actually thinking and doing, not what
some patent attorney wrote because it sounded better or broader.
The patent office used to require models of inventions, and stopped when they
ran out of room to store them. It doesn't take much room to store some software
and some specifications.
---
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 | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 03:04 PM EDT |
In your description of the (bad) TSM test, you say it
assumes a
"super-skilled" engineer who can mentally cross
reference all prior
publications. That is not really what
it assumes. It assumes as super-dumb
computerized robotic
engineer who can cross-link all prior art like a
human-
language-understanding search engine but cannot actually
think. And
that assumption of complete lack of skill in the
art is what made that test so
fatal.
By requiring prior art to be obvious to a lawyer/computer
wholly
unskilled in the art, the test turned a key
legislative requirement on its head
and allowed patents on
anything so obvious to those skilled in the art, only
a
complete idiot or unskilled freshman would think it was
novel.
This
problem with the test was in no way limited to
software, it was just the area
of technology lacking enough
precedents and examiner experience to prevent its
application.
Now the second assumption, that an excessively abstract
description would be enough to teach those skilled in the
art to practice the
invention, does presume superskilled
practitioners and thus directly
contradicts the first
assumption made by the Federal Circuit and the USPTO at
the
time.
Such contradictory assumptions, both in favor of the same
side really shouldn't be allowed to stand, as a matter of
simple judicial
logic, one must choose a level of assumed
skill and then stick with it for both
obviousness and
enablement requirements, across all or most cases in an area
of technology (an "art").
[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 03:42 PM EDT |
There's a lot that can be discussed, but I think we have to take this kind of
extraordinarily complex discussion in baby steps to be able to properly
understand.
The problem with starting with a false premise is that one
ends up with a lot of conclusions that stem from that premise that are
incorrect.
"Everything is Patentable" speaks from the premise that the
existing State of Law does not support. Not everything is patentable as math is
clearly not currently patentable.
Perhaps the statement is speaking from
the perspective of what the Law should be instead of what it is. In which
case:
Why should the concept of Gravity be patentable? It exists all around
us impacting all of us equally. If a person jumps to their demise, should a
"patent holder" really be rewarded with funds from the persons estate because
the person made use of Gravity?
Why should the concept of the Earth
revolving around the Sun be patentable?
Why should the light we see
that is attributable to our nearest Galaxy be patentable?
Humans were not
involved in creating any of that. Yet they are discoveries and by the specific
limited (ignoring such things as math is not patentable) wording of Patent Law
the people who discovered said items have obviously earned a potential
Patent.
However, if one feels that such should not be patentable, then
starting from a position of "Everything Is Patentable" is misleading at
best.
As a result, here are two very valid questions for Michael
Risch:
Why start from an easily provably wrong position compared with
current Patent Law?
And if it's a question of "what should be":
Then
why start from the assumption that "what should be" actually is and completely
bypass the valid questions surrounding such things as why the concept of Gravity
should even be patentable in the first place?
There's a claim to be
balanced in between patentability and non-patentability. When one starts from
such an easily provable false infrastructure - balance does not honestly
exist.
I suggest Mr. Risch rethink whether or not there's a valid
starting point with defining what should be patentable and what shouldn't be to
begin with.
The harm that results from patents will be brought out into
the open and weighed against such benefits patents provide so they can be kept
in mind while subject matter is considered for patent protection. Only then,
with the harm kept in mind as the initial definitions which form the
infrastructure of everything else, can we ever hope to gain a measure of sanity
in the madness that exists today.
A madness that seems to be extending to
normal people. Just today I read an article of a woman who named her baby
Benjamin (Franklin anyone?) who was upset that someone else she knew also choose
the name for the other woman's baby. Some people have even appeared to have
trademarked their child's name. Heaven forbid such a future exists where that
kind of behavior seems normal.
RAS[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 04:53 PM EDT |
Does the patent cover the idea, or the actual method of implementing the idea?
If someone else came up with a method of "slide-typing" which was not
the method of implementation described by the patent would it infringe, or is
the patent on the idea of "slide-typing" which means that no one else
could do it, regardless of method of implementation?[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 05:02 PM EDT |
Definiteness: There’s not much to say here; software patents are
often impossible to understand. Examiners and courts should demand more
definiteness, as required by the statute: “The specification shall conclude with
one or more claims particularly pointing out and distinctly claiming the subject
matter which the applicant regards as his invention.†35 U.S.C. §
112.
I hope the examiners are aware of the advice the USPTO [website] gives to patent applicants regarding
how to write the patent (which I assume is advising on 35 U.S.C. §
112):
The specification must include a written description of the
invention and of the manner and process of making and using it, and is
required to be in such full, clear, concise, and exact terms as to enable
any person skilled in the technological area to which the invention pertains, or
with which it is most nearly connected, to make and use the same.
[Emphasis
added]
If, as is asserted, "software patents are often impossible
to understand" then clearly (sic) they are not written in "such full,
clear, concise, and exact terms" as required and as such the patent is
invalid?
In which case are the USPTO [examiners?] guilty of negligence in
granting the patent, especially if it is then used for [legalised] extortion (no
better word for it)? [ Reply to This | # ]
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Authored by: Imaginos1892 on Monday, June 11 2012 @ 05:17 PM EDT |
First argument:
A modern digital computer is a state machine consisting of a
large number of electronic circuits designed to express several
billion abstract entities called "bits". These bits are not part of
any circuit and do not exist in any physical sense; they are
expressed as certain patterns of voltage or current within the
circuits. Each of these abstract bits can be set to 0 or 1, and
the aggregate values of all the computer's bits at any instant
in time is called a "state". The computer's entire purpose is to
manage those states and the transitions between states, which
are accomplished according to rules encoded into the CPU,
called the "hardware instruction set".
Computer software is simply a way of describing certain specific
states, and "loading" or "installing" software is merely a
matter of setting the bits to those states.
Thing is, every possible state, including every program that has
ever been or can ever be written, is already inherent in and
anticipated by the design of the computer hardware. The entire
field of programming and software development is just a semi-efficient
way to select states that result in the computer's peripheral
hardware devices doing something interesting and/or useful.
And that's the point! Programmers are not INVENTING new
states, they are DISCOVERING uses for states which are
already inherent in the computer. Finding those states, and
separating them from the many similar states that do ALMOST
what you want, can be difficult and time-consuming, but it
is NOT invention! It is selection and exclusion.
---------------------------------
Second argument:
A computer's CPU chip is an engine for manipulating symbols
expressed as binary numbers according to mathematical rules.
These are the only operations it is capable of. Any program or
software to be run on that computer must first be rendered down
to those simple mathematical operations, or the computer will
be incapable of processing it.
Anything that consists entirely of mathematical operations is
math, and can be nothing other than math.
---------------------
"That's not an argument, that's just contradiction!"
"No it 'tisn't!"[ Reply to This | # ]
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Authored by: mrisch on Monday, June 11 2012 @ 05:41 PM EDT |
Thank you all for your comments. We're at well over 500, but
a lot of them are Anonymous, so I don't know if it is 500
people telling me I'm wrong or 5 people telling me I'm wrong
100 times each. :)
I've tried to keep up on the point by point comments, but
I'm running out of time for the day, so I thought I would
summarize a few of the themes and respond.
1. Patents are bad in general. This is an old debate. I
don't think so, but that's a whole other discussion.
2. Patent terms are too long. I tend to agree, especially in
software where commercialization is easier and fast moving
3. Software patents can hurt open source and small
developers. No dispute there - but also true of other
patents. There is a trend away from individual inventing in
this country, and the irony is that software is one of the
few areas really open to individuals anymore. I'm sure most
readers here would be willing to jettison that if it meant
getting rid of software patents.
4. Software is all math, and thus not patentable. Yes, I get
it. You don't think I do, but I do. I just think we are
talking past each other. Here's why:
a. I'm not sure we're even talking about the same thing.
Some of you have said that the Swype patent is not the
software you're thinking of. If that's true, then we may
actually agree. Software that just moves information from
one place to another is probably not patentable - I would
argue as a matter of practical utility.
b. Even if software is all really math in theory, I'm
talking about applied math. We've had applied math as
patentable in the past - some of you have said the rubber
process in Diehr. There's also the MacKay Radio case - a
mathematical equation applied to an antenna, etc.
c. I have read hundreds and hundreds of computer science
journal articles dating from the 1980's until now. These are
written by theorists - the people some have said will teach
me how I'm wrong and that all software is math. Not one of
those articles has said, "well, what we've done here is
math, so it was always theoretically possible and you could
do it on any hardware anyway and so we didn't really do
anything important." Even when they present mathematical
proofs, they then show how it applied in a particular
environment and how the solution was new and different from
what others had written. I'm not saying that these folks
support patenting, only that they recognize the practical
consequences of their work.
d. You can derive practical benefits and have computers
that are in practice different from each other, even if in
theory they are all the same.
e. Many of you have criticized my view that hardware
matters. Yes, in theory you can run linux on an HP
Calculator. But c'mon, really. Is each of you really saying
that you've never had to deal with constrained resources?
Moving big data over a small network pipe? Conveying a lot
of information on a low resolution screen? Performing
calculations with slow processor and little RAM? Yes, Java
runs everywhere - knock yourself out on that old XT. Of
course hardware matters.
5. This last point is the fundamental problem of software
patents - stuff that is impossible on hardware suddenly
becomes possible when hardware improves. The hard part is
figuring out whether the inventive solution was obvious
based on improvements in hardware or not. This is the debate
we had with Swype - the big idea was the finger gesture
represents word (as someone put it). Is that just a simple
idea suddenly made possible by a hardware improvement in
2003? Or was it a brilliant idea that was possible back when
graffiti was patented in 1993, if only someone had thought
of it? Most of you seem to lean toward obvious - and I'm not
disagreeing. My only point is that the debate should be
focused on this point: is the invention meritorious, and not
focused on whether it is this software and therefore
unpatentable in its own right. Further, we have to better
define what we mean by obviousness - Do we require a
nonobvious idea? a nonobvious implementation? both? There's
not a lot of agreement on this in the patent community.
6. Some of you have pushed back on the idea it is more
efficient to fight patents outside the patent office.
Perhaps as the number of suits grows, this is true. However,
note that examiners let all these bad patents through in the
first place. I agree that making it more costly to get
patents would help. Note that a majority of patents expire
long before their terms are up due to failure to pay
maintenance fees.
7. A couple of you have commented on some fundamental
problems with software patents, like a lack of prior art. I
agree. This particular problem is getting better, and I'm
not sure we should parcel out what types of things get
patented based on prior art availability.
8. There has been a lot of talk about software creating a
"new machine." My general response to that is below (though
some of you have already posted disagreement there):
http://groklawstatic.ibiblio.org/comment.php%3f
mode=display&sid=20120610180253648&title=Well%2C+since+my+cr
edibility+is+on+the+line...&type=article&order=&hideanonymou
s=0&pid=985355#c985779
As I note in that post, structure is irrelevant for the most
part, capabilities are what matter. As I also note, I think
the focus is misplaced since a process is patentable whether
you create a "new" machine or not.
9. Many of you note that a problem with patents is that they
don't teach anything and they are too broad. I agree on all
counts. The way we deal with this in patent law is through
enablement and written description rejections. That said, I
wonder whether many readers think some patents are broader
than they are. Some of the comments about the Swype patent
have implied that it: a) covers all shape pattern matching,
b) all touch keyboards, or c) even all swiping. I don't
think it does any of these things. I think that it does
cover a fundamental way to do a particular task, there are
other ways to do swiping - indeed, other ways have been
suggested in the comments. The Oracle v. Google experience
should show that software patents can be narrow and non-
infringed - quite easily, apparently.
10. Some of you have implied that because I'm a "fan" of
certain technology I must have lost objectivity about the
quality of the patent. I assure you that's not true. I spend
a good part of my days looking for prior art to invalidate
patents, including the Swype patent. I can't talk about it a
lot, because I am under a confidentiality agreement. So, I'm
well aware that even the coolest app that someone claims to
have invented may not be new and may be obvious. In fact,
that's always my first assumption. But this also means (as
I've noted above) I have read hundreds and hundreds of
articles about the state of the art at a particular time -
and that art is often well ahead of what is going on
commercially. While I would like to think that everyone
out there is using some patented process long beforehand, it
is sadly not true - usually because the hardware available
at the time doesn't make the solution commercially feasible
(note the hardware matters theme).
That said, in reading the literature, I can tell when lots
of people are thinking about the same ideas at the same time
even if they haven't coalesced. And I can tell when people
are thinking the opposite of a patented solution and the
idea really is new. The ideas are almost never really new -
but sometimes they are.
This is all a long winded way of saying that I appreciate
your comments. They are very helpful for me to hone my
arguments and make sure that I'm precise about what is at
issue.
[ Reply to This | # ]
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- Summing up a bit... - Authored by: PJ on Monday, June 11 2012 @ 06:25 PM EDT
- Thank you for writing, and for listening! - Authored by: Anonymous on Monday, June 11 2012 @ 06:54 PM EDT
- Regarding point 4 (software is all math) - Authored by: Anonymous on Monday, June 11 2012 @ 07:09 PM EDT
- Thanks a lot, and a clarification - Authored by: PolR on Monday, June 11 2012 @ 07:51 PM EDT
- Thanks a lot, and a clarification - Authored by: mrisch on Monday, June 11 2012 @ 08:16 PM EDT
- Thanks a lot, and a clarification - Authored by: Anonymous on Monday, June 11 2012 @ 08:27 PM EDT
- Thanks a lot, and a clarification - Authored by: Anonymous on Monday, June 11 2012 @ 08:35 PM EDT
- Thanks a lot, and a clarification - Authored by: PolR on Monday, June 11 2012 @ 09:15 PM EDT
- And even on those processors that do - Authored by: jesse on Tuesday, June 12 2012 @ 08:18 AM EDT
- Thanks a lot, and a clarification - Authored by: mrisch on Tuesday, June 12 2012 @ 08:28 AM EDT
- disgusting. - Authored by: Anonymous on Tuesday, June 12 2012 @ 08:45 AM EDT
- Can do vs. Will do - Authored by: Anonymous on Tuesday, June 12 2012 @ 08:58 AM EDT
- Ha. You make the complaint of every mathematician makes - Authored by: jesse on Tuesday, June 12 2012 @ 09:04 AM EDT
- Your last paragraph is funny. - Authored by: jesse on Tuesday, June 12 2012 @ 09:18 AM EDT
- General-purpose computer - Authored by: Anonymous on Tuesday, June 12 2012 @ 09:24 AM EDT
- Thanks a lot, and a clarification - Authored by: PolR on Tuesday, June 12 2012 @ 09:24 AM EDT
- "Capable"? - Authored by: Anonymous on Tuesday, June 12 2012 @ 09:57 AM EDT
- Patent on problem specification? - Authored by: Anonymous on Tuesday, June 12 2012 @ 10:03 AM EDT
- Thanks a lot, and a clarification - Authored by: PJ on Tuesday, June 12 2012 @ 11:10 AM EDT
- Atoms - Authored by: PolR on Tuesday, June 12 2012 @ 11:12 AM EDT
- People stuck in the wrong environment - Authored by: Anonymous on Tuesday, June 12 2012 @ 11:54 AM EDT
- Mrisch, from a patent lawyer's point of view, your program was SUGGESTED - Authored by: Anonymous on Tuesday, June 12 2012 @ 10:19 AM EDT
- Software Patents ne Process Patents - Authored by: RMAC9.5 on Tuesday, June 12 2012 @ 04:34 AM EDT
- Thanks a lot, and a clarification - Authored by: Anonymous on Tuesday, June 12 2012 @ 10:16 AM EDT
- Summing up a bit... - Authored by: jonathon on Monday, June 11 2012 @ 10:07 PM EDT
- Summing up a bit... - Authored by: Anonymous on Tuesday, June 12 2012 @ 01:49 AM EDT
- Summing up a bit... - Why Math shouldn't be patentable - Authored by: mjscud on Tuesday, June 12 2012 @ 01:54 AM EDT
- So, basically, you agree all software patents are invalid... - Authored by: Anonymous on Tuesday, June 12 2012 @ 10:08 AM EDT
- Summing up a bit... - Authored by: Anonymous on Tuesday, June 12 2012 @ 10:34 AM EDT
- The Point of Diminishing Returns... - Authored by: mrisch on Tuesday, June 12 2012 @ 01:59 PM EDT
- No, you don't get it - Authored by: Anonymous on Tuesday, June 12 2012 @ 08:05 PM EDT
- Need to revise premise that it's about money - Authored by: Anonymous on Wednesday, June 13 2012 @ 03:37 AM EDT
- Summing up a bit... - Authored by: Anonymous on Wednesday, June 13 2012 @ 09:00 AM EDT
- And a final sum up... - Authored by: mrisch on Wednesday, June 13 2012 @ 02:51 PM EDT
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Authored by: Anonymous on Monday, June 11 2012 @ 05:56 PM EDT |
Thank you for your views. I believe that, if properly
implemented, your suggestions would reduce problems caused
by new software patents.
I see a couple of remaining unresolved issues that I suspect
require more than broader application of existing criteria.
(a) The current presumption of validity is fairly unjust
because roughly 90% of software patents seem to be invalid,
even under current rules. Most small businesses (<100M)
don't have the resources to fight off lawsuits over invalid
patents.
(b) The USPTO's current incentive is to grant patents ASAP
and the inventor's current incentive is to make patents as
broad as they can get away with.
(c) Patent duration is reasonable (or a little-short) for
manufacturing industries. It is too long for software.
(d) Software patents are completely unreadable.
(e) Injunctions are problematic. (too many patents in a
given product)
Suggestions?
(a) Remove the presumption of validity and, prior to suit,
require a public 'validity exam' - and identification of any
entities to be targeted within the next 3 years. The cost
should be ~2M USD, of which 1M USD would be available as
prize money for anyone submitting a brief leading to
invalidation. Just imagine a world where someone who was
notified of a potential Oracle-style lawsuit popped some
champagne.
(b) Change the process to something where the USPTO benefits
from rejecting patents:
Current:
Submit->fee X.
If rejected, resubmit.
To:
Submit->fee X.
If rejected, resubmission requires fee 3X and appeal
requires bond 3X. All appeals require 'beyond a reasonable
doubt' and patent examiner is presumed to be correct.
(iterate as needed->main point is that inventors need to be
motivated to not waste the USPTO's time.)
(c) 10 years from submission date probably makes more sense.
5 might be a bit short. 20 years from acceptance is too
long.
(d) Infringement should require 'beyond a reasonable doubt'
Not understanding the patent is a reasonable doubt. Most
reasonable patents can be explained with great clarity.
(e) If a particular patent contributes less than 30% of a
product's value, don't allow injunctions.
Unresolved issues?
Free software. I don't see a way to simultaneously prevent
M$ from giving away reverse-engineered software to kill
competition and allow Linux to distribute a similar free
version of the same software.
--Erwin[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 08:02 PM EDT |
Unlike most here, I'm generally in agreement with the author that software
patents are not bad in principle, it is just that they have been very poorly
implemented. For example, the RSA public key cryptography algorithm is very much
useful and nonobvious and deserving of patent protection.
There is a patentability criterion which is not discussed in the article and
which would eliminate many bad software patents. The criterion is this: it must
be the *solution* which is nonobvious, not the problem. If the problem is not
obvious, but, once stated, the solution is, then the solution should not be
patentable. I.e. once you realize you have a problem, you should be able to
solve it without worrying about a patent simply because someone else anticipated
a few years ago that you might have this problem.
An example: (Sorry, all from memory from years ago, so no citations, and may be
grossly inaccurate.) Someone anticipated the Y2K problem well in advance, and
patented a way of solving it. (Sorry, there were no details in the article I
read about the 'solution'.) Then post-Y2K he attempted to sue a whole bunch of
organizations, including the New York Times, on the basis that they'd solved
their Y2K problems so probably had used his method.
(If the problem *and* solution are nonobvious, then a patent can be issued, but
it applies only to the solution. Other solutions to the same problem are
non-infringing.)[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 08:32 PM EDT |
re Swype, which I use and like...
As described by you, Swipe is "mouse gestures", e.g. draw a shape,
compare shape to database of shapes. Do shape action.
You credit Swype as "creating an interface between your finger and the
touch keyboard" which is, IMHO, wholly over generous. The touch screen and
the touch tracking elements therein, and the operating system "create the
interface", Swipe does a (reasonably novel) job of reinterpreting the
input.
This is a classic example of the conflation of apparent action and actual
function, or as I like to call it "giving credit to the line" (which I
will now explain).
Circa 1997 I was involved as an employee of a subcontractor of a contractor to
the FAA to produce the new backup satellite data network for air traffic
control. I was fascinated to discover that internally the various
"regional" traffic zone managers are competing with each other for
best-in-show performance. As such they were -alarmed- to discover that managers
in other regions would be able to see "their" local faults real time.
Such minor failings were to be kept secret so that they could, I don't know,
spin them? Hide them? Whatever...
So one of the actual managers came up to me and said "can't you just draw a
line down the map here, and here, and have the system only show errors between
your own lines?"
See, good software makes the user action seem like the function. I could easily
draw the requested lines, but creating a security barrier and information
filters to "back that line up with functionality" would take a whole
redesign of the system. The "regular Joe" user of things like
power-point cannot tell the lines from the functionality. As such they
constantly miss-attribute the functionality of a system at such a high level
that its neigh-on impossible to make them understand that what they think is
happening is not what is happening at all. Plato's cave, blind men and
elephants, and all that.
Lawyers, especially Patent Lawyers, are just "regular Joe(s)" and they
typically take a rewrite at the patents that makes them useless. (That's what I
experienced when I was forced to write up one of "my inventions" that
was then not even attributed to me in the final patent paperwork since the final
patent filed was a disjunct set to the actual functioning of the device.)
Note that I am -not- an "all software is math" proponent. I know all
software can be "described with math", but planetary motion can be
described as math without making planets math... To a mathematician everything
is math.
In that same sense, to a patent lawyer all software is machine because they
-must- see it that way in order to be patent lawyers else-wise they would never
be able to take that software patent bite. yes?
We -wouldn't- have to change the laws to fix software patents because honest
people know that software is already unpatentable. Not just because of the
"math thing" but because the "machine" is the
"computer" and not the software.
There are lots of complex machines out there. My personal favourite to cite is
the sewing machine and its buddy the "surger". Over time these two
close-cousins have gotten very complex even at the home-use level. Go look some
high-end sewing machines and surgers. They will auto embroider and sew-in button
holes and buttons.
People got patents on all those features and add-ons and abilities over the
years. Reversable fabric movement. One touch button holer. Variable pitch
movement. Sideways movement. Multiple thread pathways for multi-color
embroidery. All of it was perfectly good patent fodder.
Now if someone were to build a big housing over a particular machine and that
housing pushed those buttons and levers on that machine, that housing would be a
new machine. And also perfectly good patent fodder as well. An automated housing
that extended the machine in a real way would be an actual invention.
But if someone were to come in to court with a patent that said I have invented
"sewing multiple buttons and button holes in a row to close a garment"
or "embroidering a flowers on t-shirts to make people feel happier"
they would get thrown out (and then beaten in the coffee room) for being
idiots.
So with computers "the good bites" of the patent apple were already
taken up when the people who made the machine and all its parts did that making.
More patents issued for the network controllers. Memory systems. Modems.
Keyboards. Touch screens. Batteries. All of it. And each one of these devices
came into existence with a set of functions. "Communicating with another
comptuer" is the base definition of "a client which communicates with
a central server". The extra words "client, server, and central"
are all immaterial. Computer A talks to Computer B using the built in functions
of the network controllers, and the built in functions of every device between
the two computers.
So when "real programmers" read software patents we -never- see
invention in the software, we see "oh, he used the network card as
designed".
In sort we see "oh this is a button hole made by pushing the button hole
button".
It's nothing. The patent issued for that feature already and its toll was paid
when I bought the ethernet card for my computer.
All software patents double-dip on the "actual" machine's actual
patents.
I call this purpose patenting. The Desqview patent on using the virtual memory
system of a i386 to intercept the memory writes to a display to allow windowing,
for example, take the "this cpu can intercept any memory reads and
writes" and says "I'll do that for the video memory" and calls it
novel.
Embroider blue flowers on green stems on a red shirt by loading the right color
thread and shirt and then pressing the feature button. Same thing.
People in the patent tolling business mistakenly believe that the computer can
-see- the whole program. That "loading the program into memory" makes
it part of the machine. But the CPU, the actual part of the computer that -does-
anything cannot see past its current operation. It literally doesn't know what
the next opcode will really bring until it goes and gets it and does it. (With
pipelining and predictive execution it can guess like up to three operations
away, but really, that's not a program's worth of knowledge.)
Network cards say "oh you want me to send this data" and "here
some data arrived".
Transcriptase doesn't know about cells, it just follows along and copies DNA.
ha. ha.
Now there is a very small set of computer-like devices called FPGAs (and CPLDs
etc.) where loading in an image more or less "makes a new machine" out
of the chip. These are the only, and still arguable, cases where hardware plus
software makes new machine. Even these, however, are constrained by their
mechanics and have already had all those mechanics submitted to patent-land.
If the court could be made to understand that software doesn't -ever- create a
machine, and that the machines have already been patented for all the possible
functions that they can perform because software can not -ever- make a machine
do something that it wasn't designed to do, then the software patent
"controversy" would just go away.
Back to Swype... The touch screen measures. The database bits hold data. There
is some fuzzy comparison. The a word is chosen or a subset of words is
displayed. Choices are made and the string of bytes is sent to the input field.
Or in other words, hardware did a lot of reading and the computer did a lot of
comparing and copying. All of that is already patented (and most of it is
expired patents as well).
It "just -looks- like a line".
Swype is a great program. It deserves it's copyright and trademark protection.
It's not patent material because the -machine- doesn't do anything the machine
isn't designed to do.
Swype has a -purpose- and -value- but it doesn't describe a transformation or
machine.[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 09:15 PM EDT |
Mr Risch says:-
Some of these solutions are best applied by patent
examiners at the time the patent is being sought, but the reality is that we
will never have enough money to fully test every patent application. For that
reason, I’m a firm believer that for many disputes it is more efficient for the
parties that have a stake in the matter to fight about validity at the time of
litigation. This increases costs on patent defendants, but if examiners will not
get the job done anyway, I would rather they not spend a lot of time
trying.
The simple reality is that often these battles end up
as a David vs Goliath battle without the feelgood twist of the little guy being
triumphant. All this does is allow the big corporations with an army of lawyers
to beat the little guy. If the little guy is the one holding the patent, the
bigger one can ignore it knowing that the patent defendant cannot afford to put
up a fight. Similarly, if the larger company holds the patent, even if the
patent is rubbish they can easily put a small developer out of
business.
Obviousness:My experience with computer scientists
is that they believe everything is an obvious improvement over the past. I’ve
read enough engineering journal articles to know that this is not true, but many
software patents are obvious.
The next problem is for the
software developers. How is the system supposed to work? Must a software
developer review every software patent before writing each line of code? What if
a patent is lodged covering a work in progress where the 'offending' code is
written but the product is not yet completed? The real problem is that more
often than not, software patents are being 'violated' because they are obvious,
even the ones that Mr Risch may believe are not. How many software patent cases
have there been where a software developer has read a patent, thought 'That's a
good idea', and implemented it vs those who have simply solved the same problem
with the same solution, oblivious to the fact that someone had got a patent on
it? Finally, a bit of advice...believe the computer scientists you speak to and
those who actually develop software over what you read in articles written by
self-proclaimed experts.
Any system that relys on requiring people to
perform impractical tasks and on unbalanced court battles is going to be
fundamentally flawed. It is never going to work and will only serve to hamper
the innovation it professes to support. Programmers and engineers tend to be
practical and logical people. If something is broken, fix it. If it's beyond
repair, you throw it out. Software patents are beyond repair. This is why there
are not too many fans of software patents here. [ Reply to This | # ]
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Authored by: Anonymous on Monday, June 11 2012 @ 09:17 PM EDT |
I think that the law does have to change. I have been mentally cycling something
I call "The Software Implemented Machine Patent Limitations and Exclusions
(SIMPLE) Act" that I'd submit to congress had I such power.
It would say essentially the following:
-- Software is Patentable as "an extension to a machine". (don't yell
yet. 8-)
-- Implementations of Software can only violate that patent if that
implementation is the -only- software running on the machine at the same level
of abstraction. That is, if the software plus the hardware actually creates a
"new machine". (this gives us CPU microcode as part of the larger CPU
patents, and FPGA images as part of an industrial machine etc.)
-- No Implementation of software that is, or can be, run on a general purpose
computer can be held as infringing on any software patent.
-- A general purpose machine is any machine that is running, or can -usefully-
and/or -meaningfully- run more than one patentable or unpatentable element or
different patentable or unpatentable elements at different times.
-- As a mater of law, no software running on, or which can be run on a general
purpose computer, can be held to infringe any patent.
-- Indicators of General Purpose Computer include, but are not limited to
machines exhibiting one or more of the following gross characteristics when they
exist at the same level of computing as the patented agency:
--- The presence of more than one family of functionality. (If it makes calls
and plays games and takes notes etc, then those "and"s indicate a
general purpose device.)
--- The presence of an "operating system" element.
--- The presence of any any discrete "applications" distinct or
optional with respect to -any- "operating system" or
"application" element.
--- The presence of loadable software modules or "optional"
"components"
--- The applicability of more than one "patent hierarchy" or "top
level patent" to the execution domain of the computing device. A
"patent hierarchy" is the set of patents defined by one patent and all
the prior art disclosed in that patent, and those patents and their prior art.
If patent A is disclosed as prior art to patent B and patent C; patents B and C
represent two separate hierarchies unless C also discloses B as prior art.
(in other words, if patent B defines a machine, and patent C defines a machine,
the set of patents define more than one machine if C and B are unaware of each
other. This bullet item needs work.)
--- The presence of interchangeable or removable (in normal operation) discrete
data modules that contain "code" the machine will run, including hard
drive, flash drives, rom cartridges, etc. [Basically if you don't need to crack
the case to reprogram the device then the device is intended to be regularly
reprogrammed and so is "general purpose".]
-- The complaining party shall bear the burden of proof to demonstrate that and
allegedly infringing device is single purpose.
-- It follows from the above that a valid patent for the software portion of a
patented device does control the disclosed material when it is used in general
purpose context or device .
=====
Basically you should be able to make the simple declaration that your device
runs an OS (windows, linux, mac os, DOS, JVM, etc) or that it "also plays
angry birds" or "has a scripting language" and then walk away
with a JOML.
But people with complex code-heavy specific industrial processors (as in that
rubber case etc), and people inventing CPU's with microcode components, should
be able to protect their (rubber processing) machine.[ Reply to This | # ]
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Authored by: swmcd on Monday, June 11 2012 @ 11:44 PM EDT |
You write
every process patent is an algorithm, mathematical or
not.
I don't understand the distinction that you are making
here.
All algorithms are mathematical.
If you have some category of
processes that you consider to be algorithms but not mathematical,
then you need
to find a different word for them, or else you won't be properly
understood.
Furthermore, I do not agree that every process is an
algorithm.
If the only effect of carrying out a process is to encode the
output of an algorithm in the state of some machine (e.g. a computer) then the
process IS an algorithm, and should not be patentable. Examples of patents that
were (regrettably) granted for algorithms include
- CadTrak
- the BCD
conversion patent (eventually overturned)
- patents on compression
algorithms
- patents on encryption algorithms
In contrast, consider
Diamond vs. Diehr. At the end of that process, you have more than just the
result of a computation sitting in a register in an industrial controller. At
the end of that process, you actually have a batch of cured rubber. There is an
algorithm involved, but the process is more than that.
If we could get the
patent office and the courts to understand and respect this distinction, we
could eliminate very many software patents. [ Reply to This | # ]
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Authored by: Paul Johnson on Tuesday, June 12 2012 @ 04:13 AM EDT |
One issue that the article raises is that of determining when the subject of a
patent is "abstract". I want to address that specific point here.
Having read the Supreme Court cases on this, I think the distinction the court
is trying to make is between the manipulation of matter or energy (which is not
abstract) and the manipulation of information (which is).
Thus a design for a new type of touchscreen that senses finger touches in a
novel way involves the manipulation of matter to create the screen and the
manipulation of energy to make it work. Both of these should be patentable. But
the algorithms that determine where the finger has travelled and what words it
might be spelling are manipulating information.
The "pencil and paper" test comes somewhat close to this, in that a
process that can be followed using a pencil and paper is restricted to
manipulating information. If you read "pencil and paper" to include
arbitrarily complex and lengthly processes that would in practice be infeasible
for a real human to carry out then you basically get the same answer (and the
person with the pencil and paper will sit next to the person "skilled in
the art", who is also an abstract fiction with impossible capabilities and
limitations).
It might seem possible to save such a patent by describing a physical machine
(i.e. a configuration of matter), with registers and logic units, that would
implement the algorithm. And it is true that a patent could be written that
would cover such a machine because it would be written in terms of the physical
matter that would compose such a machine. But by the same token it could not be
read to cover a general purpose computer executing software without also reading
into the patent the information-manipulation underlying the design of the
patented machine. If information manipulation is not patentable then such a
reading is inpermissable. So if, for instance, the physical machine claimed in
the patent included a buffer register for the finger position that was connected
to a sensor on one side and other circuitry on the other side, then the
plaintiff in a patent suit would have to point out an equivalent hardware
register physically connected in the same way in the alleged infringing device.
Merely pointing out that the alleged infringer buffers the infoming sensor
information in some other way would not be sufficient.
Our hypothetical plaintif might also argue that an FPGA implementation of his
algorithm infringes, on the grounds that the programmed FPGA is a physical
implementation created by manipulating matter and energy, and the programmed
FPGA does indeed contain a register which is connected in the way described in
the patent. This would be true, but it would also be comparitively easy to work
around: FPGA implementations are rarely pure hardware: modern FPGAs usually
contain one or more CPU cores, so that an implementation can be a combination of
hardware and software. It would then be possible to avoid such a patent by
shifting a part of the implementation into software. For instance it might be
feasible to have the CPU read information from the sensor and then pass it to
dedicated processing hardware on the FPGA.
---
These ideas and others like them can be had for $0.02 each from your friendly
local idealist.[ Reply to This | # ]
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Authored by: Chromatix on Tuesday, June 12 2012 @ 04:36 AM EDT |
Mr. Risch,
Lots of people on this forum have already delighted in telling
you that you're
wrong, and how and why. I'm not going to bother extending
that, but instead
to offer an alternative solution. Needless to say, I'm also
in the anti-
software-patent camp, I just believe in using constructive
criticism when
possible. Accordingly, I'm going to try to show you how Swype
could have
turned their invention into a legitimate patent.
So let's get
one thing clear: software is mathematics and therefore
unpatentable; the same
goes for business methods (such as 1-Click). If the
entire substance of the
patent requires a computer, or is an algorithm that
can (notionally) be carried
out by a pencil and paper exercise, the patent is de
facto invalid. That's my
logical starting point.
This means that the Swype invention cannot be
described in terms of the
algorithm that performs the pattern recognition
(which would, in any case, not
be novel due to prior art in Graffiti). Instead
one must go back to what it *is*
- a computer *peripheral*. The fact that it
is so tightly integrated into a
telephone-computer (thank you Iron Sky for that
terminology) is irrelevant -
the integration is an obvious and logical
development beyond the
fundamental invention of a computer input
peripheral.
So the patent would have to describe a "device for text input"
with
distinguishing features such as "no moving parts", "word-at-a-time
orientation", "compact size compared to standard keyboards, without
impairing
usability by a standard-size human", and "flat, smooth surfaces
permitting easy
cleaning", this last being useful for medical and industrial
applications.
It would have to be written so that it is merely an
alternative front-end to a
teletypewriter, as used in telegraph service many
decades ago. The fact that
teletypewriters were almost immediately used as
input/output devices for
early computers (once they became capable of handling
text) would then
show that attaching this "new teletypewriter" to a computer is
another of
those obvious developments of the idea.
And of course it would
have to materially distinguish itself from Graffiti,
according to the same
criteria as you have helpfully outlined.
This is not wholly unprecedented.
Consider IBM's famous Model M keyboard,
built around a patented keyswitch
mechanism, known as the "buckling
spring". It is still considered the gold
standard for keyboard design, to which
all other high-quality keyboards aspire.
The Cherry MX keyswitch is probably
the closest non-IBM equivalent.
And
here's a radical proposal to correct the bad-patents problem: make the
USPTO
liable for the legal costs of all patent lawsuits which involve invalid
patents
issued by the USPTO. The huge ratio between the cost of filing a
patent and
the cost of litigating it out of existence should concentrate minds
wonderfully. This liability shall not extend to legal costs incurred after the
USPTO itself has invalidated a patent and communicated such a finding to the
patent holder.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 04:43 AM EDT |
Bias disclosure: I stopped being agnostic on the topic of
software
patentability several years ago. Furthermore, there
is enough libertarian in me
to believe that government-
granted monopolies interfere with free market
principles and
are fraught with potential for favoritism and abuse; to wit
our
present patent system that overwhelmingly favors the
enormously wealthy and
entrenched interests.
The Supreme Court has decided several cases where
it might
have resolved the issue by holding that software is
categorically
excluded as non-patentable subject matter. The
Court has waffled or ducked on
that issue every time, on at
least two occasions suggesting that Congress speak
to the
issue. For that reason, I agree with Prof. Risch that yet
another case
arguing for a categorical exclusion of software
patents on grounds of section
101 non-patentable subject
matter would likely be a fruitless quest. The Court
has made
plain that it doesn't want to go there on section 101
grounds ever
since Gottsch
alk v.
Benson>, 409 U.S. 63 (1972).
At the same time, the Court has
never held that software is
patentable, which sparks a suspicion that a
majority might
be persuaded to categorically exclude software on other
grounds
if given a compelling argument. The argument hastily
assembled from research
notes laid out in this post has the
advantages of: [i] not being addressed to
section 101; [ii]
being far easier to understand than section 101 arguments
raised thus far; and [iii] cutting to the very quick of
objections to software
patents, the patent thickets drawn
around entrenched products and the dampening
effect of
software patents on software innovation.
Caveat, I
have not updated my citations in several
months.
Prior Art and
Obviousness
Fortunately, there is a strong legal argument for
categorical exclusion of software patents based on prior art
and obviousness
grounds set forth in a line of cases not yet
examined by the Court in the
context of software patents.
The Patent Clause includes a statement of
its purpose:
"[t]o promote the progress of science and useful
arts[.]" Accordingly, the Court held in A.
& P. Tea Co. v.
Supermarket Corp., 340 U.S. 147,
153-154 (1950): Footnote
1
The function of a patent is to add to the sum of
useful knowledge. Patents cannot be sustained when, on the
contrary, their
effect is to subtract from former resources
freely available to skilled
artisans. A patent for a
combination which only unites old elements with no
change in
their respective functions, such as is presented here,
obviously
withdraws what already is known into the field of
its monopoly and diminishes
the resources available to
skillful men. This patentee has added nothing to the
total
stock of knowledge, but has merely brought together segments
of prior
art and claims them in congregation as a monopoly.
Just so, a
software patent also "only unites old
elements with no change in their
respective functions [and
therefore] obviously withdraws what already is known
into
the field of its monopoly and diminishes the resources
available to
skillful men." Every software patent
issued subtracts from what skilled
artisans can create using
known methods on their computing devices.
By analogy, one might have legitimately obtained a patent
for the
invention of the claw hammer to drive and pull
nails. But a subsequent patent
granting a monopoly on the
use of a claw hammmer with a slightly longer handle
and a
slightly heavier head to drive and pull longer and thicker
nails would
almost certainly fail the A. & P. Tea
test. Software does no more
than the legal equivalent of
driving and pulling different sizes of nails, the
equivalent
of different music being played on a computer from separate
CDs.
Each melody played from a CD is not a new invention
within the meaning of the
patent laws even though each
recorded song causes a different sequence of bit
register
states to be created. These are not different
"processes"
within the meaning of the patent laws.
Likewise, different software programs
processed by a general
purpose computer do not create new processes. The
processes
are in the computing device, not in the software. The
invention lies
in the computing device, not in the binary
notation, the literary work the
device processes.
The "old elements" combined in software are binary
notation
indicating desired bit register states, processed by the
device as
instructions to change its bit register states
accordingly. The computing
device and its processes are not
modified by the execution of software. To the
extent that
someone might be tempted to argue that binary notation is
patentable we need not linger on the section 101 patentable
subject matter
inquiry; binary notation is unquestionably
prior art. Pingal was known to have
used binary notation
circa 5th-2nd Centuries B.C.E. B. Van Nooten. Binary Numbers in
Indian Antiquity, 21(1) J. of Indian
Philosophy, p. 31 et seq. (1993).
Binary notation is very
simply a numerical writing system for recording (and
processing) numbers having the base 2, marvelously suited to
the requirements
of modern computing devices.
(To take the contrary position, then one
must of logical
necessity extend patentability to individual digitally
recorded audios, videos, and books which likewise are stored
and handled by
the device as a stream of binary bit states.
A bit by any other name is still a
bit and regardless of the
level of abstraction used to aid the editing of bits
(such
as programming languages, interpreters, and compilers) all
of these
marvelous software castles are erected by the
computing device from binary
notation written by software
authors via their programming aids.)
To
be sure, I am aware of the Federal Circuit's In Re
Alappat holding that
processing a different program on a general purpose computer
creates a new
machine. But
a combination of factors have raised a huge suspicion in my
mind
that the holding would
be swept away if the issue were revisited in today's
changed
climate in regard to
software patents. E.g., the dissent's argument on
that issue
are compelling and went
unanswered by the majority; Chief Judge
Rich is gone and the
present Federal Circuit is
not nearly so software
patent-friendly as that court was in
1994; many of the case law
underpinnings
of the Alapatt majority's opinion were swept
away by unreversed portions
of
the Circuit's decision in Bilski; and I don't believe
that the Alappat
holding would pass the giggle test
if presented to today's Supreme
Court.
Beyond the prior art barrier, software patents also raise
the closely related issue of obviousness because they only
combine familiar
elements (manipulation of binary bit
register states) according to known
methods, doing no more
than yielding predictable results. (When unpredictable
results are obtained, the trade generally refers to the
defect as a "bug".) In
KSR Int'l v.
Teleflex, 550 U.S. 398,
___ (2007), Slip Op. at pp. 11-12, the Court
reiterated:
For over a half century, the Court has held
that
a "patent for a combination which only unites old
elements with no
change in their respective functions . . .
obviously withdraws what is already
known into the field of
its monopoly and diminishes the resources available to
skillful men." Great Atlantic & Pacific Tea Co. v.
Supermarket
Equipment Corp., 340 U. S. 147, 152 (1950).
This is a principal reason for
declining to allow patents
for what is obvious. The combination of familiar
elements
according to known methods is likely to be obvious when it
does no
more than yield predictable results.
(Italics added).
The combination of bit register states according to known
methods to
yield predictable results is all that the
processing of software can
accomplish. Otherwise, the
software could not be processed. There may be
significant
pre- or post-data processing activity that is patentable but
software is of necessity prior art and obvious within the
meaning of the
patent laws.
Supporting Property, Contract, and Takings
Law
The immutable fact that software patents "subtract from
former resources freely available to skilled artisans"
also raises issues
involving property law, contract law, and
the Fifth Amendment's Takings Clause
that have not yet been
examined by the Court in the software patent context. A
hypothetical set of facts (actually played out countless
times) will simplify
illustration of these issues.
Lantern Corp — like Oracle,
IBM, and Apple —
manufactures and sells computing devices. Lantern also
licenses software and frequently obtains software patents
whose claims read on
the use of the devices they sell and
have already sold. Lantern sells a
computer to A. Software
Author. Later, Lantern applies for and is awarded a
patent
that restricts what software works Author may develop and
license to
members of the public.
On that set of facts, the sale transferred
clear title to
the chattel computing device from Lantern to Author. Lantern
retained no rights to restrict what Author can do with the
computer. He owns
it. It is his.
But Lantern's new patent restricts what Author can do
with
his computer, casting a legal cloud over his title to the
machine. The
patent also breaches the contract to transfer
good title and also raises the
issue of Lantern's breach of
the implied covenant of good faith and fair
dealing, given
Lantern's long history of obtaining patents that restrict
what
can be done with its already-sold computers, a cause of
action that in at least
most jurisdictions allows claims for
general, special, and punitive
damages.
As between Lantern and Author, this set of facts has the
potential to raise the question of whose property right is
superior. Author's
ownership and right to the enjoyment of
his computer to the full extent of its
capabilities is a
fundamental Natural Law property and liberty right. And the
"father" of the U.S. Patent system and one of our
nation's Founders,
Thomas Jefferson, has an eloquent
explanation of the reasons there can be, in
his view, no
Natural Law right to ownership of a patent. Graham v. John Deere Co.,
383 U.S. 1, 9-10 n. 2 (1966),
citing Letter to Oliver
Evans (Jan. 1814), VI Writings of Thomas
Jefferson, at 298
(Washington ed.).
I will not dwell on this point
long because bedtime
approaches. But history teaches that during the period of
the Constitution's drafting and for decades thereafter, a
patent was regarded
as a revocable "privilege," not a
property right, the antecedent of today's
definition of a
"license" in the Administrative Procedures Act, 5 U.S.C.
§ 551(8). As
best I can tell so far, the line of cases
describing the patent right as a
property right trace to
seminal dicta unsupported by any authority in Consolidat
ed Fruit Jar Company v. Wright, 94
U.S. 92 (1876).
Moving on
from Author v. Lantern Corp, the same set
of facts raises the issue of
whether the USPTO's grant of
the patent monopoly to Lantern amounted to a
taking of
Author's property and/or liberty interests without the due
process
and just compensation required by the Fifth
Amendment.
As between
Author and the Feds, the fact that software
patents subtract from what can be
done with the prior art of
the computing device rather than advancing the
progress of
the useful arts should weigh heavily here.
The computer
is Author's chattel property and upon purchase
he had a reasonable
investment-backed expectation that the
government would not restrict his use of
it, particularly by
the grant of an invalid patent. At the moment of purchase,
he acquired a bundle of property rights protected by the
Fifth Amendment, such
as “the right to possess, use
and dispose of it.†R
uckelshaus v.
Monsanto Co., 467 U.S. 986, ___ (1984)
(alleged taking of trade secrets)
(italics added),
quoting United
States v. General Motors Corp., 323
U. S. 373, 323 U. S. 377-378 (1945) Bd. of
Regents v.
Roth, 408 U.S. 564, 561-572 (1972) (“the
property interests protected by
procedural due process
extend well beyond actual ownership of real estate,
chattels, or moneyâ€).
Likewise in regard to the liberty
interests:
Although the Court has not assumed to define
"liberty" with any great precision, that term is
not confined to
mere freedom from bodily restraint. Liberty
under law extends to the full range
of conduct which the
individual is free to pursue, and it cannot be restricted
except for a proper governmental objective.
Bollin
g v. Sharpe,
347 US 497, 499-500 (1954) (reaffirmned in
later cases). There is no “proper
governmental objective†in
issuing patents whose claims "subtract from
former
resources freely available to skilled artisans" and
grant would-be
monopolists the exclusive use of those
resources. A. & P. Tea,
supra.
Yet another of the property rights (and liberty interests)
Lantern sold to Author was the right to practice with his
computer “any
existent knowledge from the public domain
[along with] any materials already
available", John
Deere, supra at 6, and to do so without
concern
that the USPTO would grant any “patent for a combination
which only
unites old elements with no change in their
respective functions.†KSR
Int’l, supra; Bolling, supra.
Cf., Golan, supra (finding no protectable
First
Amendment right to publish works removed from the public
domain by
amendment of the copyright law; branding the John
Deere Court's relevant
discussion as dicta).
In my opinion, laws that are so vague
and/or ambiguous that
their reach is unpredictable are bugs, not features.
Moreover, legal slippery slopes should be avoided whenever a
bright line rule
that is understandable to all would serve
the purpose. The software industry
thrived when software
patents were rare and the only shield for warding off
copycats was copyright. I am aware of no persuasive reason
the industry would
suffer in any way should all software
patents be piped to /dev/null.
I
will spare the reader a rousing conclusion, because family
life beckons.
However, I do wish to express my disagreement
with Prof. Risch's position that
"for many [patent]
disputes it is more efficient for the parties that have
a
stake in the matter to fight about validity at the time of
litigation."
In my view, that position cedes the
relevant legal ground to the exclusive use
of the fabulously
wealthy, as does the vagueness and ambiguity of the patent
laws and their jurisprudence.
Notes
[1] A. &. P Tea was
followed in, inter alia, Graham v.
John Deere
Co., 383 U.S.
1, 5-6 (1966) ("Congress may not authorize the issuance
of patents whose effects
are to remove existent knowledge from the public
domain, or
to restrict free access to
materials already available"),
citing A. & P.
Tea; Bonito
Boats v.
Thunder Craft Boats
, 489 U.S. 141, 146 (1989) ("Congress may not
create patent monopolies of
unlimited duration, nor may it 'authorize the
issuance of
patents whose effects are to
remove existent knowledge from the
public domain, or to
restrict free access to
materials already
available[]'"), quoting
John Deere. Golan v.
Holder, ___ U.S.
___, No. 10-545 (18 January 2012), Slip Op. at 19
(copyright
case; distinguishing
John Deere) ("In Graham, we stated
that 'Congress
may not authorize the
issuance of patents whose effects are to
remove existent
knowledge from the public
domain, or to restrict free access
to materials already
available.' But as we explained
in Eldred, this passage
did not speak to the constitutional
limits on Congress’
copyright and patent
authority. Rather, it 'addressed an
invention’s very
eligibility for patent
protection.'†(Italics added;
citation omitted.)
— Paul E.
"Marbux" Merrell
Retired lawyer
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 04:56 AM EDT |
Basically you are defending software patents because there are cases where they
benefit the inventor.
That's the wrong metric. The correct metric for a law
is that it has to benefit society.
The benefit of patents law for society
arise when they enable progress that would otherwise not happen. Namely when
inventions happen and are publicly disclosed that would otherwise not reach the
public.
This is the case for the small independent non-manufacturing
inventor, not for a large manufacturing company that already gains financially
from making inventions, by being able to use them in products.
The small
independent non-manufacturing inventor does not have the means to entertain a
patent portfolio protecting him from countersuits. As a result, patent laws
only provide him very limited bargaining power. Instead, he is better off
working with non-disclosure until sealing a deal.
Since in the area where
they could make an actual essential difference, software patents are
doing more harm than good, there is no point in the effort for maintaining the
system.
There also is the problem that patents are supposed to offset public
and private interests by granting a limited-time monopoly in exchange for fully
applicable disclosure.
The lifetime of software patents is 20 years. There
are only very few protected elements of interest to the public after such a long
running time (things like Patricia trees, some forms of B*-trees, sorting heaps,
and other stuff). Those few that are actually of interest after the whole
protection duration are not tied to particular products and technology,
but rather define the state of computer science.
Placing them under patent
protection hampers education and research.
You defend software patents as
being a good idea in principle, for some people. But for those for which they
really could and/or should be an enabler, they turn out to be a rather
badly mixed blessing.
If one wants to help society more than damage it, the
general "patent" umbrella is not workable. One would need to create something
quite different, and the hubris of "I can create something working better for
the general good than free market" is rather seldom supportable by solid
results. [ Reply to This | # ]
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- bad argument - Authored by: Anonymous on Tuesday, June 12 2012 @ 02:30 PM EDT
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Authored by: wouterdb on Tuesday, June 12 2012 @ 06:20 AM EDT |
A few short comments, that I think have not been addressed:
If you are a
programmer, show us the code. There are many
levels of skill, and it would help
the debate if we could
judge your skill level.
The quality of
documentation in software patents is far
below standard. It is not written to
document, but to
obscure. The example patent you present is a nice example.
Bad typesetting, no standard UML notation, only a sequence
diagram of the
program, no executable code and subtle
omission of all constants. These
constants are what sets the
system apart from mathematics, they represent the
engineering challenge. I would recommend reading 'Software
Architecture in
Practice' by the SEI
You do not mention the time range in which a
patent should
be valid. Computer science moves very rapidly. Five years
are
already a very long time. A patent taking longer than
this will almost
certainly be meaningless. Taking into
account the slow rate at which the
justice system works, can
there be meaningful enforcement.
Would a
protection schema such as the Semiconductor Chip
Protection Act be more suited
for software. It protects the
exact program, but allows reverse engineering and
explicitly
leaves function unprotected. It is granted automatically,
like
copyright.
This mode op protection allows further improvement on the
concept.
Anyone with the right the technical skill can re-
implement the same idea. If
he does a better job at it,
society benefits. This is how software works.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 08:01 AM EDT |
There was a time when patents were believed to provide social utility. It was a
time during the infancy of industrialization, a time during which research and
production were difficult and industrialists needed all the help they could get.
It was a time long before computers became universal and made devising complex
methods easy.
Those conditions no longer apply today.
Nowadays, if one
party doesn't "invent" something after dipping in to the international sea of
ideas, then another will, because the sea is out there, and it is deep, and
there are millions of parties contributing to it freely and
continuously.
Under such conditions, creating limited monopolies on
inventiveness is no longer helpful to society, indeed it is downright harmful.
Find a person who today claims that patents are helpful (except defensively) and
I'll show you a person who benefits from disallowing other people to come up
with similar ideas by themselves.
The many clever people here on Groklaw
have pointed out numerous reasons why software patents lie somewhere between
untenable and absurd, quite apart from being a disaster in practice. But I
think the matter goes far beyond that. Today's world is one in which innovation
is very strongly assisted by computers, and as a result, the entire process has
altered beyond recognition since the days when patents seemed like a helpful
idea.
Today patents are no longer helpful. They are simply a means to gain
additional profit at the expense of society and progress. Their
time should be brought to a close. [ Reply to This | # ]
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Authored by: JonCB on Tuesday, June 12 2012 @ 11:04 AM EDT |
Don't know if you're still reading mrisch but, assuming so,
i would like to thank you for bringing your point of view. I
disagree with your initial assumption (Sorry, anyone who
states that software is not math is wrong as a simple matter
of fact. Whether you believe that or not changes nothing)
but your conclusions are interesting.
If i read you right, one of your suggestions is that a
patent application should clearly state the intended inputs,
"transformations" and expected outputs of the claimed item.
I'm actually kind of good with this. If patents actually
clearly stated their inputs and outputs maybe they'd be
worth more than the paper they probably got printed on 3 or
4 times.
I do think that there needs to be a better way to defend
yourself against patents. One that doesn't cost several
orders of magnitude more than the patent application itself.
Do you think there's any potential in creating a "This
method of doing things does not infringe on any active
patent" certificate that costs effectively the same amount
as the initial patent application and has the same
assumption of truth as a patent(i.e burden of proof of
invalidity is on plaintiff to supply overwhelming evidence,
can apply to USPTO to get re-examined)?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 01:06 PM EDT |
Some ills of software patents:
1. Obtaining Patents cost a lot of money. They cost even
more paying the lawyers to write the application than they
cost to actually apply (and perhaps more than creating the
invention itself.)
2. It is ridiculous to provide a twenty year protection in
an industry where rate of obsolescence is few months
(especially at a time when the indutry is gradually moving
to cloud based service model and where innovations can come
up overnight.) Patents are a hindrance to this natural
growth of the industry and may result in unreasonably
prolonging the life of a product.
3. Software is different from other engineering and
mechanical inventions. The latter are generally the kind
that can revolutionize a given mechanical process. Software
is generally evolutionary in nature. Its utility does not
depend as much on the newness of a specific technique as it
does on the unique combination of known algorithms and
methods. Such methods of innovation should not be protected.
[ Reply to This | # ]
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Authored by: feldegast on Tuesday, June 12 2012 @ 01:15 PM EDT |
Software on a computer is nothing more than data processed
by the CPU, if we patent data then we will soon start
patenting movie/book plots and other insanities, after all a
book plot generates mental images, voices and environments
in the brain doesn't it?
How is a book different from a computer program? sure it is
not as well defined mathamatically but the book is processed
by the brain (computer) remembered, and commented about by
the reader. A computer is (if i recall) a device that
accepts inputs, produces outputs and stores
information....sounds like a brain to me.
so if we patent algorithms, we might as well go all the way
and patent thoughts!
If you don't want thoughts patented, then please put your
foot down and stop patents, remove the insanities of
patenting mathematics which they are not supposed to do
anyway and programmers might actually be able to get on with
their job of creating rather than litigating.
---
IANAL
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 | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 01:25 PM EDT |
There's a system, still in use today, called Relay Ladder
Logic (RLL). Back in the pre-computer days, banks of
electrical relay panels controlled a machines operation.
They took inputs from limit switches, push buttons, etc. and
produced output to control motors, solenoids, etc. Timers
were available, and 'analog' was accomplished by banks of
relays, converting values to groups of relays. Logical
operations like AND, OR, NOT, XOR, etc were available.
Later, gate arrays were configured to process bit data from
inputs, by following a 'program'; a list of instructions.
The was the Programmable Logic Controller (PLC).
Relay panels are an exact analog to digital computers, and
can, in theory, do everything a computer can do; they are
basically digital processors, and massively parallel at
that.
There is no "software" in a relay panel, unless you called
the whole panel configuration 'software'. They are purpose-
built. PLCs, however, are easy to reconfigure ('program').
Are we then to assume that a PLC 'program' is patentable?
It does something new and unique, you say? Take input from a
new kind of sensor? Sends output to a new kind of device?
Those things can't make the 'program' patentable. Wait, you
say, it does something unique in its processing. Isn't the
purpose of a general purpose machine to be able to do
ANYTHING within its capabilities? It's illogical to assume
you can patent ONE of those possibilities. Yet that's what's
being done right now. If you support this sort of
'reasoning', then general purpose machines are useless; they
are being turned into purpose-built machines, by virtue of a
patent. Find a way to make the machine do something OUTSIDE
its capabilities. THAT would be patentable.
BTW, novel and unique mechanical devices are still being
patented. The present system handles these quite well.
Novel and unique processes are also being patented. Swiping
a touch screen, regardless of how unique the software is, is
not a process like curing rubber. It's like putting a
chemical into rubber. You can't patent the act of putting a
chemical into rubber. Processes take certain specified
input products, and output certain products, otherwise, they
don't work. Software systems can take many inputs, and may
produce many outputs, one, or none. You can't patent
actions. Software does not fit into the present patent
system, mechanical, electrical, or process (chemical,etc).[ Reply to This | # ]
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Authored by: mipmip on Tuesday, June 12 2012 @ 01:38 PM EDT |
Thank you for offering your view here on Groklaw. I see problems to your
solution on the practical side:
* The interesting thing is, as you note, many of the rules that would invalidate
patents are already there, just not rigorously applied. You short-circuit here
and propose doing just that. But there is a reason this isn't done already. The
patent system is inherently pro-patent, it is geared to allow as many patents as
possible, and give as much power to them as possible. Any rigidness the supreme
court may want has been and will be eroded by patent lawyers sitting in patent
courts having an interest in a "powerful" patent system. Look at the
past, I'm not a patent historian but the bits I have heard seem all to fit an
avalanche of small pro-patent change over the years from lower courts.
* Software, being a production with practically no entry barrier, is done by
everyone now, not just a circle of people posting in specialized curriculums.
Enumerating knowledge is a tall order even in the latter case, but impossible
when millions of developers do the same as a hobby or for profit. Internet
search only helps when you can put the invention into a few snappy words, code
itself is not really searchable, not even if there were only one computer
language in use. This makes prior art in software a toothless weapon.
* You find invalidating patents afterwards a workable solution. Again there is a
disparity between all the small developers writing software not having the funds
to defend against invalid patent claims and big companies holding patents and
having the means to force their view of the patent on those developers. Look at
Microsoft and their game of intimidation with undisclosed patents. It is even
working against big companies, how easy it would be against single developers
and small bussiness.
It is like getting laws accepted after a perfunctory check and only if someone
with money doesn't like it, is the law put before congress.
* The patent system has lost (if it ever had at all) its original purpose of
advancing the field by publicizing inventions. The reason the system is here now
is to put a prize tag on inventions, to make them a commodity that can be sold
or invested in. A valid reason. At least for bankers ;-). You said somewhere you
believe in the original purpose of the system, but even you have to concede that
the reality is different.
* Finally let me say your plan has at least a chance of getting partly
implemented. So while being sceptic I can at least hope for a small improvement.
Good Luck.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 01:52 PM EDT |
No, not that chicken and egg problem. But this chicken and
egg problem:
People take chicken eggs and eat them or perhaps use them
in ways that chickens may not approve of. The chickens do
all the work to create the egg and, as far as we know,
never really complain about the egg being taken or how it
is used.
Now consider what it would be like if chickens did complain
very loudly about their eggs being taken and used for
someone else's benefit in a way the chickens did not approve
of. Would you listen to them? Suppose the chickens said
"Stop taking our our eggs and using them to suppress
others! Even if you pay us, we do not want you taking our
eggs for that!" Well, with chickens being stupid and all
that, they probably would get ignored. Of course if they
did talk, they might get patented, however.
Well here you are. Consider that we as programmers are the
chickens and the software we create from our ideas and
effort are the eggs. If the actual producers of the
software are saying "Stop taking our software and patenting
it!" should people just continue to ignore them? This is
not the case of those doing the work wanting their stuff
patented. This is the exact opposite.
The pepole who are benefiting from the software patents
are NOT the people creating the software. In fact the
people are creating the software are saying "STOP PATENTING
OUR SOFTWARE!!!" What has to happen for that to sink in?
Do lawyers and politicians truly think programmers and authors of software are
so stupid they can be ignored?
Perhaps the answer is for software authors to create a
programmers union and go on strike until software patents are abolished.
[ Reply to This | # ]
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Authored by: Marc Mengel on Tuesday, June 12 2012 @ 03:48 PM EDT |
You wrote:
"I don't think the dividing line can be software,
because so many solutions use electrical signals as part of the product or
process. It is easy to rail against software, but it is far more difficult to
determine what is and is not software."
Actually, it is
exceedingly easy to tell what is software.
Electrical signals are not
software, neccesarily. Software is a number -- A series of bits -- recorded in
some kind of media.
Note that by this definition, the music on a Compact
Disk is software, as is the contents of a DVD of _The_Last_Starfighter_. As is
the pattern of holes in a Jaquard Loom card chain.
But I think that's
correct.
[ Reply to This | # ]
|
- Difficulty in determining... - Authored by: Wol on Tuesday, June 12 2012 @ 04:01 PM EDT
- No,no,no! - Authored by: Anonymous on Tuesday, June 12 2012 @ 05:12 PM EDT
- No,no,no! - DVD Video is software, not data - Authored by: Anonymous on Tuesday, June 12 2012 @ 05:27 PM EDT
- No,no,no! - Authored by: Anonymous on Tuesday, June 12 2012 @ 05:32 PM EDT
- No,no,no! - Authored by: Anonymous on Wednesday, June 13 2012 @ 12:08 PM EDT
- No,no,no! - Authored by: Anonymous on Tuesday, June 12 2012 @ 05:34 PM EDT
- No,no,no! - Authored by: Wol on Wednesday, June 13 2012 @ 05:54 AM EDT
- Abstraction levels and reference levels.. - Authored by: mbouckaert on Tuesday, June 12 2012 @ 05:29 PM EDT
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Authored by: Anonymous on Tuesday, June 12 2012 @ 05:14 PM EDT |
Simple solution:
Prior to publishing the details of the patent, publish the description of the
invention (eg for Swype: "convert a finger sliding over a flat keyboard [ie
a keyboard represented on a touch screen] into the words that would be typed by
the finger having pressed the keys slid over with error correction, with a
method to offer selection of words that may all match a given "slide"
eg sliding between l-o-s-t should be recognised as "lost") and allow
submissions to be made as to a solution before the patent is published (say 6
months min).
If any of the submissions is close enough to warrant infringement of the patent
if granted, then the patent would be declared obvious or non-novel and not be
granted (and the submitter given a [financial] reward). All submissions would
be treated as trade secrets held by the USPTO which could be used as prior art
for future patent examination; the submitter would get a "reference
receipt" should they decide to patent their submission - a patent can't
prior art itself![ Reply to This | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 06:09 PM EDT |
An oldie-but-goodie.
Donald
Knuth: Mathematical Ideas, or Algorithms, Should Not Be Patented
This
Groklaw article is from June 2009, covering Donald Knuth's letter to the
European Patent Office back when Europe was considering whether they should
allow or disallow software patents.
Any readers who haven't seen it before
should definitely give it a read. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 06:38 PM EDT |
I'm different than a lot of the people here. It seems to me that, if I can take
a chunk of boolean logic (math), and implement that in discrete hardware or in
an FPGA, and validly patent that, then I should be able to patent the exact same
boolean logic carried out in a general-purpose CPU.
And don't bother to say that the FPGA will produce its output as voltages
leaving the chip, whereas the CPU will only change bits in memory. I could add
a write to a physical output device (say a DAC), and now it's a voltage leaving
the CPU + DAC, and so that argument is answered. But that doesn't really change
the patentability question - it's just a trivial postprocessing step, which
legally does not alter patentability. Therefore, the patentability of pure
software cannot rest on "voltages leaving the chip". (For that
matter, even writes to external memory are voltages leaving the chip.)
If you're going to be consistent, if you claim that "software is not
patentable because it's math", then you have to also state that all boolean
logic that is implemented in digital hardware is not patentable, because that's
also just math. The two are equivalent.
The real problem with software patents are not that they should be unpatentable
because it's math, but that they should be unpatentable because the current
patent regime is unconstitutional, on two grounds. First, software industry
practice says "don't read the patents because of treble liability".
But that means that software patents don't actually teach anything to the
industry.
The second area of unconstitutionality is that software patents, even if they
were read, would still not teach, because they are not written in language that
is comprehensible to one "ordinarily skilled in the art". "The
art" in this case is computer programming, not law.
MSS2[ Reply to This | # ]
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Authored by: dacii on Tuesday, June 12 2012 @ 07:03 PM EDT |
I haven't read (there are too many) all the comments. So forgive me if I repeat
someone else's comments. I believe that software is no more than a description
of a process. It is a set of instructions for a (micro)processor to carry out.
The processor knows nothing other than its instruction set. The instructions
are encoded to that instruction set. Ergo the processor is reading(running the
program) based on it's language. Without a processor, nothing happens with
software. So in general software is nothing more than a description of a
process for the processor to read and act accordingly. I have seen that you may
be able to patent a process. But can you patent a description of a process?
English is a language. If you read a patent then are you not doing what the
processor does when executing the software? So by extrapolating, just by
reading the patent, you could be violating the patent. Or worse yet by
translating it into another language, maybe your native tongue Spanish, and
typing it up for others to read to avoid, you yourself have violated the patent.
Instruction sequences should not be patentable. Just my personal opinion.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, June 12 2012 @ 09:34 PM EDT |
The KolaPad
appeared on the market around 1984. It was a mass market digitizer board used by
many computer systems, but then digitizer boards were not that new at the time.
These KolaPads had keyboard overlays which allowed the user to cursor over the
keyboard template to select the keys to be entered into the computer. What is
the difference between Swipe having a keypad displayed by a newer backlit
display and an older digitizer with a plastic template? The plastic template of
course. The Swipe system doesn't add any value except for not having to exchange
templates, as they are now generated in software. Swipe didn't invent the
backlit display did they? Generating keyboards in software is not new either. So
what exactly is novel here? I don't see the added value of Swipe, as it is
nothing more than taking old ideas an applying them to newer hardware. Its the
evolution of older ideas, not some new amazing insight deserving to the ability
to kick everyone else out of the open market. This patent fails to show me
anything new, just the reapplied and recombined technology from 1984.
[ Reply to This | # ]
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Authored by: Wol on Tuesday, June 12 2012 @ 10:21 PM EDT |
Ignore the fact that they are currently, explicitly, excluded subject matter.
And if you think they should be patented, according to Groklaw you are beyond
redemption until you repent ... :-)
Let's get Gedanken to do an experiment for us. She'll bring me two computers,
completely identical apart from the fact that one of them implements a software
patent, and the other one doesn't. Now, I *daren't* switch the patented computer
on, because then it will implement the patent and all sorts of bad things will
happen to me ...
All of you who think patents on software are a good idea, please tell me how I
can tell which computer is safe to switch on! If it's possible, I can do it, I
can do any test you care to think up to decide which one is safe - apart from
switching it on to try it and see if it works.
I'll just kill off the obvious solution right now - running a scan over the hard
disk to see if the patented software is on it. All that scan will give me is a
magnetic topography, and unfortunately I have no way of knowing which topography
implements the patent and which does not. All I have is a load of north and
south poles, and no way of knowing what they mean. The patent doesn't discuss
things in terms of poles.
Can anybody else come up with any way whatsoever of telling me which machine is
safe to switch on?
Because if the machines AREN'T physically identical we have a possibly - and
reasonably so - valid hardware patent. But if they are physically identical we
have a patent lawyer's wet dream - two identical machines, one of which is
infringing and the other isn't, with no way of distinguishing them. Which means
anybody can be sued for any patent violation with no way of being able to prove
innocence.
I'll leave you with the problem of telling which computer is illegal, it's time
for me to go to bed. It's 03:20 BST here ...
Cheers,
Wol[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 13 2012 @ 06:13 AM EDT |
The claim that software is a process may not be accurate
because software is fundamentally a series of machine
understandable code which is processed by the processing power
that comes with the hardware of the computer. The hardware is
patentable, therefore what is the need for patenting software
(which is but a series of binary code and is well covered by
Copyright laws.)[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 13 2012 @ 08:30 AM EDT |
Patents were made to foster innovation. So far I see they only foster
reinventing the wheel every time.
Your example with the typing on a touch screen. Yeah, the idea was great. But
when I started typing on a touchscreen, without any investigation, the first
thing I thought was that word corrections should be based on keys that were
close to the keys I've hit. They found a very good math model to achieve that it
seems. Btw if this is the same soft keyboard I am thinking about, it has to
improve for my native language.
Anyways, do you think they invested in coming to this idea much? I would think
such idea would pop-up in some developer's head. Make the app and patent it to
take advantage over competition. But I wouldn't call that patent to be in public
interest. The idea that every idea you have is owned by you and should give you
enormous return without being competitive against others is broken.
Perhaps you are thinking from what is/seems fair in a particular situation. I
don't argue, maybe that particular patent gave the guys a deserved advantage, I
don't know. But that's not my point. My point is that patents bring in much more
disadvantages than advantages. And these are disadvantages mostly to the small
guys that new ideas come from but big bad guys benefit from them (because small
guys cannot enforce) and prevent the small guys compete (because small guys
can't defense). I also don't argue that patents are really, really, really
always bad. Perhaps there is a very small minority of good patents but that
can't be an excuse to cause so big harm to the public.
If digging a hole somewhere is beneficial to the public you don't make a law
that digging a hole everywhere is allowed.
And the rational is pretty simple. We accept that a few times some inventor that
deserves his patent will not benefit too much of it (although I question if
patents have ever helped here). But for this price the market works so much
smoother that the inventor just because of that is much better than he/she would
have been enforcing his/her patent rights.
Sorry, no time to write it better organized.
P.S. wrt "big bad guy" meand corporations which are by definition evil
by working for their interests ignoring public interests. There's a lot in the
Internet about that.
Regards.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 13 2012 @ 01:54 PM EDT |
Sometimes things are only obvious after the fact. Here is Henry Briggs to John
Napier:
"My Lord, I have undertaken this long journey purposely to see your person,
and to know by what engine of wit or ingenuity you came first to think of this
most excellent help unto Astronomy, namely logarithms.
But, My Lord, being by you found out (i.e. discovered), I wonder nobody else
found it out before, when, now known, it is so easy"
A full version is related by: Garry J. Tee, Department of Mathematics,
University of Auckland, New Zealand at:
http://web.cs.dal.ca/~jborwein/briggs.htm[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 13 2012 @ 04:37 PM EDT |
I only got through calculus, but I do not recall an "If" in math.
Most of programming is just math, but the "If" allows decisions to be
made. I think this is a profound difference between math and programming.
Before I get in too much trouble, I want to say that I think most if not almost
all software patents should be declared invalid. Almost all are obvious. An
example of super obvious is US patent 4,197,590. This is the infamous XOR
computer graphics patent.
But how about US patent 5,454,069. This patent takes 3D images, such as from a
CT scanner and makes them suitable for use in a rapid prototyping 3D printing
device. It does this by finding parts that would float off and adding supports
to hold them in place without user intervention. The patent causes a physical
change in the output of the rapid prototyping 3D printer, but it is just
software. There are other methods for finding floating objects and adding
supports. So does that mean that only one patent should have been granted for
the automatic support generation? I think not, because that would be patenting
an idea. Do you think that there should not have been any patent, because it is
just math? I say the program is making decisions and that puts it outside of
pure math.
How about US patent 7,986,859 (I am no long anonymous). This patent is for
taking the raw (Bayer Filter) image from a digital camera and converting it to a
displayable RGB image, with a minimal amount of moire effect. The program to do
this could be written without "If" statements. The method to do this
did not seem obvious, because it had not been done before and documented. The
field has a lot of literature and patents, so it seems that prior art would have
been easy to find. I was on the fence as to if this would receive a patient.
So the software provided a benefit, was not obvious and there was no prior art.
So should it have been patented?
It is obvious that I think there is a place for software patents, but they
should be very limited. I know others will disagree. Those that do disagree,
how would you protect innovative software? If you say copyrights, please tell
me how copyrights protect something like the 5,454,069 patent. The
"C" code was included with the patent. So just rewriting it in
another language maybe enough to get around copyright.
OK, end of my unpopular rant.[ Reply to This | # ]
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- Programming is just math? Software patent examples - Authored by: PolR on Wednesday, June 13 2012 @ 04:54 PM EDT
- This is a common problem: Significant invention, lives in software, no protection available..... - Authored by: Anonymous on Wednesday, June 13 2012 @ 05:36 PM EDT
- software patents through and through - Authored by: Anonymous on Wednesday, June 13 2012 @ 06:26 PM EDT
- Programming is just math? Software patent examples - Authored by: Anonymous on Wednesday, June 13 2012 @ 06:37 PM EDT
- Logic is a fundamental branch of mathematics - Authored by: Tkilgore on Wednesday, June 13 2012 @ 07:17 PM EDT
- I love this part - Authored by: Anonymous on Wednesday, June 13 2012 @ 10:08 PM EDT
- Boolean logic - Authored by: Wol on Wednesday, June 13 2012 @ 07:52 PM EDT
- Programming is just math? Software patent examples - Authored by: Wol on Wednesday, June 13 2012 @ 08:04 PM EDT
- Programming is just math? Software patent examples - Authored by: Anonymous on Wednesday, June 13 2012 @ 10:54 PM EDT
- Programming is just math? Software patent examples - Authored by: Anonymous on Thursday, June 14 2012 @ 07:47 PM EDT
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Authored by: Anonymous on Thursday, June 14 2012 @ 11:42 AM EDT |
I was rereading some of PolR's posts and I have just
realized that the error
in In re Alappat is an abstraction
inversion!
An abstraction inversion, is
the error in computer
science, of thinking of a low-level implementation
detail, in
a high level context. When abstraction inversion is part of a
design, it fixes the low-level details into a high-level design.
This makes it
impossible to change the low-level
implementation details without introducing
bugs. This is
why abstraction inversion is viewed as a error (or
anti-
pattern,) in computer
science.
Although the phrase "abstraction
inversion" is relatively
new, the underling concept is old. I remember 30 years
ago
when I was taking my first programming 101 course, I was
told not to
concern myself about how bits were physically
represented on the machine,
because bits can be
represented in many ways and electrical engineers were
constantly changing them. We wanted out programs to
continue to work whenever
the EEs invented a new way to
implement bits. We were computer programmers not
EEs.
The error in Alappat is precisely looking at programs in
a low-level
implementation dependent way. Just as
abstraction inversions result in bugs in
computer programs,
this abstraction inversion results in a faulty legal
opinion.
The error is also suspicious. I don't believe it is a
sincere
error. If it were a sincere error, the courts would
make the same error when
attempting to determine if a
given idea is the same idea as expressed in a
given patent,
and they don't. If the abstraction inversion were applied
consistently, every time EEs changed how bits are
implemented in a computer,
then every software patent in
existence would become re-patentable as a new
idea! As a
new pattern of electrical activity! The courts do not make
this
error in practice. The error is used only to cover up the
fact that abstract
ideas are being patented. Which means it
is not an error at all, but a
deliberate misinterpretation.
begin digression
Which leads me to a
problem with Google's search engine!
We I realized that the error in Alappat was
an abstraction
inversion, I naturally wanted to know if some else had had
the
same idea. No matter how I try to tell Google that I
want to search for the
phrase "abstraction inversion" as a
phrase, with the words together, Google
insists on breaking
the phrase into pieces, finding pages containing the words
"abstraction" and "inversion" separately! Yes, I have tried
"advanced search"
with the "this exact word or phrase"
field! Does anyone know if anyone else has
characterized
Alappat as an abstraction inversion before?
end digression [ Reply to This | # ]
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Authored by: rebentisch on Friday, June 15 2012 @ 07:33 PM EDT |
"My experience with computer scientists is that they believe
everything is an obvious improvement over the past. I’ve read enough engineering
journal articles to know that this is not true, but many software patents are
obvious."
Obviousness in patent law dogmatics is a last resort
general clause style filter. But the obstacle is that "obviousness" cannot be
falsified because it could always be argued that it was not obvious back then.
Obviousness to the "actual" person skilled in the art means something different
than obviousness from a patent perspective. It is not empirically founded but a
dogmatic device, and the person skilled in the art is a legal fiction, it is not
you and me.
Why are software patents generally "obvious" aka "trivial" aka
"bad"? The reason is that the object awarded legal protection ("software
invention") is not "scarce", so an incentive system (=the patent system) fails
to deliver adequate results. [ Reply to This | # ]
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Authored by: Anonymous on Saturday, June 16 2012 @ 12:25 PM EDT |
I think the main problem with the patent system isn't the ideas behind but that
some people have started to abuse it. And those who didn't are being driven to
join the brawl for no other reason than protect themselves.
You quoted "Software is hardware in every sense that matters for
patents." Let's have a deeper look at that. Software is a formalized way to
write recipes (as in cooking). Software development is a translation process (as
in language interpreter). We take ideas from customers and turn them into
detailed instructions to be executed by a moron. A human could do it but since
it would be boring, we use a computer. Note that software isn't mathematics -
it's language (as in English). It's very limited (because the computer is so
very dumb) but we're more authors than mathematicians.
Now, my questions are:
1. Can you patent the work of an online interpreter?
2. How about the words that come out of her/his mouth?
3. What about the words that she/he hears and translates?
My answers:
#1: No. The process of translating something is a craft. Crafts as such are not
patentable.
#2: Since the interpreter doesn't add anything of value to the input (they
should stay true to what is given them), the output can't be more or less than
the input. It's the input in another form but by itself, it doesn't make the
input more or less patentable.
#3 This leads to the question: Can you patent a recipe?
And the answer here is, sadly, yes. Which leads to the question: Can you patent
any recipe?
No: The recipe has to be, well, "outstanding" in some way.
Unfortunately, there is no universal standard what "outstanding"
means. When I teach an newbie, they will think my methods are outstanding but
they are just by relative comparison of what they know and what I know.
Since "outstanding" doesn't seem to be a good tool to make a decision,
what else do we have?
Damage. One of the roots of patent law is the idea to bring more justice to the
world. It was invented for the specific purpose to protect the work of
"helpless" inventors so they wouldn't be ripped off all the time.
This makes sense if you, say, develop a new medicine. As of today, you need to
spend around one billion dollars for a new medicine. Without patent law, it
simply wouldn't make sense for corporations to take the involved risks, so it
makes sense to apply it here.
But software patents are in a completely different league. They cost $20'000 or
less to produce and they can cause hundreds of billions of damage when they are
used as a weapon - which is the sole and main purpose of software patents.
Since software patents are used solely to damage society as a whole (forcing
companies to invest in them, costs of defending yourself against a lawsuit no
matter if it's justified or not, costs of canceling abusive patents, costs in
lost revenue when you can't sell your product because a competitor wants more
market share), they need to be outlawed.
If you fail in this task, then no new computer related products will be sold in
the USA by ... well ... 2013 because everyone will be suing everyone and all
money will flow into courts and to patent lawyers. No more software development
will happen because it's just too expensive/dangerous. Maybe someone will find a
patent to "display text remotely" and take down Google or the whole
Internet (at least the part that runs in the USA).
The lawsuits between Apple and Samsung should be a warning shot. These only
exist to give one company a bigger market share in a saturated market. Better
product doesn't count nor how "inventive" it is. It's just the
logical, inevitable conclusion what happens when all players follow the rules
that we made.
Or Oracle vs. Google. Oracle came in demanding several billion dollars and got
nothing. But if they had a different judge, the outcome could have been
completely different. Is that what we want?
This seems to damage companies like Swype. But does it really?
First of all, someone could copy their idea. But customers would only buy the
copy when it was better for most of them. Do we really want to protect something
that most people think worse?
Copying an idea usually leads to a new, very similar but still different idea.
The "thief" adds his own wisdom to it. We call that process
"learning". Isn't that something that we should support?
If Swype can't patent their idea, they can still make a product and sell it. If
they fail, some money will be lost. But if they succeed, no other company can
sue them for billions of dollars for no other reason than to slow them down.
Isn't that better than the other way around?
We say that the Internet Year is only three months. New ideas spring up so
quickly by now that the old, sluggish patent system can never keep up. Do we
want to slow down progress (might be a good idea) *and* feed the trolls? How
much is an idea worth protecting if it's outdated in 9 months?
How much more money will we make/safe if software patents are outlawed and all
this money goes back into R&D?
Aaron Digulla[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 18 2012 @ 05:20 AM EDT |
When Eli patents his cotton gin, how many gins can he produce by himself? Not
very many. He need to buy supplies and hire people to reproduce his invention.
As a result of this invention lots of people benefit.
When Steve patents touching your finger to a piece of glass, how many times can
he reproduce that software? Virtually infinite at essentially no cost. As a
result of this invention, Steve gets 100% of the revenue and society gets
nothing.
Patents on software are completely inappropriate. They are not good for society.[ Reply to This | # ]
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