Red Hat on Patents (VIDEO)

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

Comments

[Poppa Bear]

Could this be more one-sided?

[6]

I like their music.

[curious]

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

[Just an ordinary inventor(TM)]

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

[6]

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

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

[Malcolm Mooney]

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

Definitely not the same medium with that commercial on it.

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

And there's your tangible transformation.

[Brian Fletcher]

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

[Willton]

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

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

[Willton]

Could this be more one-sided?

Does that matter?

[oso]

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

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

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

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

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

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

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

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

[Malcolm Mooney]

"software that provides new innovative functionality"

Can you give an example?

[Chris McGeehan]

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

[oso]

@Malcolm Mooney.

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

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

There are other examples.

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

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

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

I don't understand the reasoning.

[Malcolm Mooney]

Sure, Twitter.

What's new about sending a message?

YouTube

What's new about showing a movie to someone?

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

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

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

[oso]

@Malcolm Mooney -

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

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

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

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

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

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

John White"

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

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

[Malcolm Mooney]

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

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

[Malcolm Mooney]

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

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

[Malcolm Mooney]

We are talking about software processes (intangibles in some sense

What sense is that?

[Ned Heller]

Red Hat?

Now where have I seen this before? The sans-culottes of French Revolution?

<http://upload.wikimedia.org/wikipedia/commons/0/0a/Sansculottes.jpg>

[Ned Heller]

Here's the picture

[step back]

I don't understand.

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

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

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

[6]

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

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

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

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

[6]

"Same with Youtube. It turned my computer into a "tv" or mini movie theater. "

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

Or twitter to allow you to "follow" people?

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

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

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

[6]

"Why not a software developer? "

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

[Willton]

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

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

[SteveW]

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

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

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

[Malcolm Mooney]

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

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

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

[SteveW]

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

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

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

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

[bluemate]

To Steve W

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

V

[curious]

"patents (particularly software patents) are a net drag on innovation"

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

[curious]

"why can microsoft patent old old old inventions that they didnt even invent??"

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

[Nathanael]

Could this video be more accurate?

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

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

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

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

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

History's funny that way.

[Nathanael]

SteveW,

Your argument is a series of hand-waving conclusions.

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

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

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

[Lionel Hutz]

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

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

[Lionel Hutz]

"overall"

[Joe]

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

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

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

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

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

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

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

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

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

[Red Monkey]

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

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

[Red Monkey]

"Don't like it? Try copyright."

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

[Red Monkey]

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

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

[Casual Observer]

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

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

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

[tocrossthisbridgeyoumustanswerthesethreequestions]

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

---------

Whose idea was that again?

[Noise above Law]

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

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

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

Malcolm, Malcolm, Malcolm,

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

[tocrossthisbridgeyoumustanswerthesethreequestions]

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

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

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

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

What really are your concerns?

[Noise above Law]

Nathanal,

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

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

[GS Rich]

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

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

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

[Night Writer Patent Attorney]

This was vapid.

[SteveW]

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

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

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

[Flippy]

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

He is the modern day Duell

[Flippy]

Also, don't forget to ask about Red Hat's formidable portfolio - no wonder they want everyone to abandon so-called "software patents"

[fisher ames]

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

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

[OL]

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

Comments by a 15 year corporate patent counsel.

[edstirling]

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

[Ken Brooks]

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

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

[newb]

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

[Just sayin']

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

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

Sorry Mooney, its the reality of life.

[newb]

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

[patent attorney]

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

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

[crazy prospector]

I agree with edsterling's comments.

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

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

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

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

http://www.archive.org/stream/methodsofminetim00storrich/methodsofminetim00storrich_djvu.txt

[Malcolm Mooney]

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

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

[Night Writer Patent Attorney]

>>"software that provides new innovative >>functionality"

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

Movie recommendation software.

[Malcolm Mooney]

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

There. Can we end the dumbaxx fantasy scenarios now?

[Night Writer Patent Attorney]

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

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

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

[Red Monkey]

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

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

[newb]

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

[6]

"Here is your argument restated:
"

What's up Steve?

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

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

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

[newb]

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

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

[Tazistanjen@gmail.com]

Flippy, that is base libel on poor Duell He never said that thing about everything being already invented.

http://en.wikipedia.org/wiki/Charles_H._Duell

[HierarchyOfPontificationBuckets]

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

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

Show me the opensource code for the equivalent of PhotoSynth.

Where is the opensource code for testing wireless networks?

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

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

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

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

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

Where's the opensource equivalent to Google?

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

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

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

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

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

[SteveW]

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

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

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

[Philip]

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

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

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

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

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

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

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

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

[newb]

Philip,

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

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

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

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

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

[makro]

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

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

The problems many have with "software patents" are:

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

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

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

[SteveW]

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

[HierarchyOfPontificationBuckets]

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

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

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

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

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

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

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

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

Opensource folks, you're not being intellectually honest.

[HierarchyOfPontificationBuckets]

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

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

[wk]

DC:

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

Do you care to refer one?

[6]

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

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

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

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

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

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

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

[6]

"If I'm a small-time developer with a family to feed,"

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

[6]

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

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

[6]

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

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

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

[newb]

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

[Ken Brooks]

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

[HierarchyOfPontificationBuckets]

Ken,

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

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

[HierarchyOfPontificationBuckets]

See patent 5,725,895.

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

i.e., Food made of brocoli sprouts.

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

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

[Noise above Law]

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

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

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

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

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

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

"By the by, there is no statutory category called "carriers for methods".
- actually, the statutory category is called manufacture.

[Publius]

Dear wk,

Re:

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

Do you care to refer one?"

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

[broje]

**********"software that provides new innovative functionality"

Can you give an example?

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

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

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

[worrywart]

So would this qualify as a video representing "the other point of view"?

http://271patent.blogspot.com/2009/11/bilski-movie-spoof.html

[Malcolm Mooney]

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

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

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

Fixed the typo.

[Malcolm Mooney]

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

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

Let's move on already.

[HierarchyOfPontificationBuckets]

"the industry didn't blink..."

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

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

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

[Red Monkey]

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

[HierarchyOfPontificationBuckets]

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

[Just an ordinary Erfinder(TM)]

Dear worrywart,

Re:
So would this qualify as a video representing "the other point of view"?

http://271patent.blogspot.com/2009/11/bilski-movie-spoof.html

Wunderbar!, Herr wart, phucking Wunderbar!

[6]

" True borrowing requires that the owner ALLOW you to borrow."

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

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

Not really:

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

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

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

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

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

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

"So now 6 thinks programming is not a real job."

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

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

Yeah, right. Keep on believin' that Noise.

"- actually, the statutory category is called manufacture."

A manufacture is a carrier for a method?

LOLOLOLOLOLOLOLOLOLOLOLOLOL

Wait, wait, wait LOLOLOLOLOLOLOLOLOLOLOLOLOLOL

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

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

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

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

[Noise above Law]

Stop pretending to be a wanna be lawyer - the definition of "is" is...

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

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

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

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

"and program it however they want"

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

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

[smashmouth football]

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

Not really:

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

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

[smashmouth football]

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

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

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

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

[smashmouth football]

""By the by, there is no statutory category called "carriers for methods".
- actually, the statutory category is called manufacture."

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

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

[How to File for Bankruptcy]

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