Abandoning software patents?

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

Scope

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

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

Practitioner profile

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

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

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

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

Standards

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

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

When "user communities" grow up

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

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

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

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

Example: GNU/Linux

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

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

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

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

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

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

Comments

[Christian Monsieur]

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

[Legalo]

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

[Anonymous]

Drivel...

[Yeah sure]

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

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

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

[Malcolm Mooney]

O'Riordan: "The low cost of entry to software development"

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

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

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

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

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

[Must be a full moon -- the wackos are out in full force]

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

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

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

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

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

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

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

[Must be a full moon -- the wackos are out in full force]

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

Why is this garbage even on this blog?

[Les]

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

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

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

[Malcolm Mooney]

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

"Must be a full moon -- the wackos are out in full force"

So are the sockpuppets with silly names.

[Malcolm Mooney]

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

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

[Patentista]

Ditto Legalo, Yeah Sure and Full Moon.

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

[Moonbeam alert -- keep the woman and children off the computer]

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

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

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

Anymore strawman you want to knock down?

[Malcolm Mooney]

"posting this one-sided article hurts PatentlyO's credibility."

ROTFLMAO.

[Yeah sure]

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

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

[twitter.com/pikkumatti]

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

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

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

[Malcolm Mooney]

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

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

"Product-by-process claims, anyone?"

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

[6]

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

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

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

[6]

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

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

[Paul Cole]

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

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

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

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

[Yeah sure]

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

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

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

[patentdaddy]

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

[patentdaddy]

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

http://bit.ly/2KpEIu

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

[Malcolm Mooney]

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

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

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

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

[Yeah sure]

What does it take exactly to be a garage tinkerer of "ordinary skill" in 2009?

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

[Malcolm Mooney]

Paul Cole: "Why should inventors in the complex technical field of software be denied the rewards of their creativity? "

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

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

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

[anonymous]

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

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

Neither side is particuarly sympathetic.

[Ned Heller]

Ludicrous.

[James Daily]

I'm going to address a few of his claims:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://en.swpat.org/wiki/Free_software_projects_harmed_by_software_patents

[curious]

"Can you imagine the utility of an innovative word processor that can't read any existing documents?"

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

[Heywood]

I can't believe PatentlyO legitimizes this kind of garbage...

[Pirate]

Classic example of a shrill response in search of a real issue.

Arggghhh.

[curious]

"Ciarán O'Riordan is a Brussels-based software rights lobbyist, originally from Ireland."

[fisher ames]

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

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

[WindyCity]

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

[Ciaran O'Riordan]

(Comment from the author)

Hi all,

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

A few weeks ago, a site consistently critical of software patents published an article by some lawyers about the arguments *for* software patents:
http://www.groklaw.net/article.php?story=20090926131450794

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

[Malcolm Mooney]

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

This is a rebuttal? LOL.

[Anonymous]

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

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

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

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

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

[Avast]

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

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

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

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

[Anonymous]

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

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

[PJ]

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

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

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

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

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

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

[7]

Bilski is going down like 6's mom on a date. Sorry.

[Anonymous]

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

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

[Just Asking]

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

[6]

"Bilski is going down like 6's mom on a date. Sorry."

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

Supar christian.

[American Cowboy]

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

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

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

[6]

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

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

[broje]

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

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

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

[James Daily]

"This is a rebuttal? LOL."

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

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

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

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

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

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

[Justice League]

American Cowboy, excellent job pointing out the flaws in PJ's reasoning :)

[6]

"Signal claims will also come back."

HAHAHAHAHAHHAHAHAHAHHAHAHHAHAHAHAHHAHAHHA

Wait wait,

AHAHHAHAHAHAHAHAHHAHHAHHAHAHHAHHHHAHHHAHAH

Hold on broj

HAHAHHAHAHAHAHAHHHHAHAHHAHAHAHHAHAHAHAHHAH

[Pirate]

Again, someone please remind me what, exactly, a "software patent" is? Is that like a "patent troll?"

These are terms designed to keep windbags fully employed.

[Malcolm Mooney]

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

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

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

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

[broje]

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

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

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

Try again.

[Justice League]

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

WAAAAAAAAAAAH!!!

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

WAAAAAAAAAAAAAAAH!!!!!

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

WAAAAAAAAAAAAAAAH!!!!

[Anonymous]

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

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

[6]

"Lack of patents promotes monopolies."

Lack of temporary monopolies promotes monopolies...

Wait wut?

[eric76]

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

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

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

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

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

[BigGuy]

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

Isn't there a patent on that?

[Paul F. Morgan]

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

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

[6]

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

Not that I'm aware of.

"If the Supreme Court "

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

"plain language of the statute," /= literal.

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

It'll never happen bucko.

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

HAHAHAHAHAHHAHAHAHAHAHAHAHHAHAHAHAHHAHAHAHAHAHAH

AHAHAHAHAHHAHAHAHAHAHAHAHHAHAHAHAHAHAHHAHAHAHHAH

HAHAHAHAHAHAHAHHAHHAHAHAHAHAHHAHAHHAHAHHHAHAHAHA

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

How do you propose to do that sparky?

[curious]

Anonymous, your posting at | Nov 06, 2009 at 02:16 PM is excellent.

[6]

BTW if you wanna know my ID you can come and meet me anytime. In fact, you can meet 6 at the upcoming bilski trial.

[Anonymous]

"How do you propose to do that sparky?"

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

[broje]

*******Lack of temporary monopolies promotes monopolies...

Wait wut? ********

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

[Jules]

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

Isn't there a patent on that?

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

--------------------------------------------

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

[Malcolm Mooney]

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

Isn't there a patent on that?

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

[6]

"(assuming you really work for the PTO)."

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

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

[6]

"market streams"

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

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

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

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

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

[American Cowboy]

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

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

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

[Anonymous]

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

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

[6]

It means I'm a homeless guy on the side of I-95.

[6]

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

Deal?

[American Cowboy]

"It means I'm a homeless guy on the side of I-95."

You made my weekend!

[Treadmore]

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

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

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

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

[6]

"You made my weekend! "

Sometimes when new people come to the blog it's fun.

[Fiery Spirited]

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

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

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

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

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

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

[6]

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

[American Cowboy]

"software is pure math" Baloney. You don't type numbers and equations into your source code, do you?

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

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

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

[Kawabago]

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

[red floyd]

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

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

[Adam]

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

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

[Wendell Brown]

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

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

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

[Joe]

@red floyd, just asking

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

[HierarchyOfPontificationBuckets]

MM: "no software need ever be written or manufactured to obtain a patent."

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

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

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

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

Why don't you enter Google's programming contest (http://www.google.com/programming-contest/) and post a few of your solutions? Why don't you post some new solutions to the problems in Programming Pearls?

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

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

[mike]

"'software is pure math' Baloney. You don't type numbers and equations into your source code, do you? "

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

[Marc Mengel]

Rod Anderson writes:

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

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

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

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

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

[Tazistanjen@gmail.com]

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

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

[Malcolm Mooney]

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

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

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

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

[Malcolm Mooney]

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

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

(actual argument heard here every day)

[IDBIIP]

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

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

* See http://thepriorart.typepad.com/the_prior_art/2009/11/altitude-capital-partners-altitude-nines-v-deep-nines.html

[6]

"This true in all fields. "

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

"You seem pretty ignorant about the field of computer science. "

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

"demonstrates the Patent Office's inability to distinguish the obvious from the novel, "

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

There's a difference between the two statements.

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

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

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

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

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

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

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

Do you need serials or names?

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

" "Programming Pearls" by Bentley."

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

" What difficult computing problems have you solved?"

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

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

What about any of that?

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

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

[HierarchyOfPontificationBuckets]

Malcom/Marc Mooney/Mengel,

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

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

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

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

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

[David A. Wheeler]

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

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

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

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

[6]

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

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

"Where you and I differ is the solution."

What was your "solution"? I must have missed it.

[Kevin R.]

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

I DOUBLE FLIPPIN' DARE YOU TO DEFINE "SOFTWARE"

[breadcrumbs]

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

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

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

[HierarchyOfPontificationBuckets]

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

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

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

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

[Kevin R.]

@ David A. Wheeler

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

http://www.dwheeler.com/ -> "About Me"
-> http://www.dwheeler.com/dwheeler.html

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

HAHAHAHAHA!!!!

[mike]

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

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

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

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

[fish bones]

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