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Open Source Initiative, Free Software Foundation Unite Against Software Patents

Soulskill posted about 5 months ago | from the like-batman-and-superman-fighting-illiteracy dept.

Patents 105

WebMink writes "In rare joint move, the OSI and FSF have joined with Eben Moglen's Software Freedom Law Center to file a U.S. Supreme Court briefing in the CLS vs Alice case. The brief asserts the basic arguments that processes are not patentable if they are implemented solely through computer software, and that the best test for whether a software-implemented invention is solely implemented through software is whether special apparatus or the transformation of matter have been presented as part of the claims (the 'machine or transformation' test). They assert that finding software-only inventions unpatentable will not imperil the pace of software innovation, citing the overwhelming success of open source in the software industry as proof."

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105 comments

Good (0)

Anonymous Coward | about 5 months ago | (#46369423)

Good sense prevails.

Re:Good (2)

Immerman (2627577) | about 5 months ago | (#46370069)

Well, good sense shows up for the battle anyway, we'll have to wait for a ruling to see if it prevails.

Good to see them working together (3, Insightful)

cbhacking (979169) | about 5 months ago | (#46369451)

I respect Stallman's accomplishments, and I can see the logic of his arguments, but I sometimes feel that he's too divisive within the F/LOSS community. Infighting - which is easy for outside forces to exploit - could weaken all sides of the movement. This lawsuit is a key example of a situation where by combining forces, they can achieve more than either those who take a pragmatic or a principled stand (what I see as the key differences between the OSI and FSF) could achieve alone. I hope to see more such efforts (and of course, I hope they prevail in this suit).

Re:Good to see them working together (0, Flamebait)

poetmatt (793785) | about 5 months ago | (#46369611)

Your ad-hominem issues with Stallman have no bearing on his academic achievements and the work he has done for F/"LOSS", so your comment loses relevance entirely.

Just because the man sticks up for his values which (when people aren't taking low hanging fruit and complaining about his physical behavior) happen to be factually correct, doesn't mean that he's too divisive. It means the FOSS community people are compromising their values and giving in to the opposite of their values.

Re:Good to see them working together (2)

Merk42 (1906718) | about 5 months ago | (#46369659)

Good job being an example of the infighting that GP is talking about.

Re:Good to see them working together (1)

poetmatt (793785) | about 5 months ago | (#46380995)

This is a logical impossibility.

By your comment, either there is infighting (by agreeing with the post I had replied to), or I'm causing infighting (by disagreeing).

Re:Good to see them working together (4, Insightful)

cbhacking (979169) | about 5 months ago | (#46369703)

I see nothing ad-hominem about pointing out that the leader of one of the organizations in question has frequently gone on the record attacking major projects supported by members of the other organization, and attacking those members' ethics in general. There was an article just a few days ago about Stallman denouncing LLVM/Clang, despite its technical merits and open-source nature, because it's not his preferred *flavor* of "free software". Never mind that just as anybody can fork it and make the fork proprietary, so can anybody fork it and make the fork copyleft. Also never mind that there are plenty of examples closing permissively-licensed software and having the open-source version (which may or may not have been relicensed copyleft) win anyhow.

Zealotry can have it's uses, but that doesn't mean that the zealots are right. It doesn't mean they're wrong, either. Some of Stallman's predictions have come eerily accurate. Others have been way off the mark. I'm of the opinion that cooperation and technical excellence in open-source development, regardless of whether or not it's copyleft, is more important than dividing the community over licensing issues. Stallman disagrees. This is an issue between the OSI and the FSF. That's not ad-hominem, it's a statement of fact pertinent to the discussion at hand.

But hey, if *you* want to have an argument about whether or not I'm making logically unsupported attacks.. well, you can go have one in the corner by yourself, while the rest of us discuss the actual topic. Try to keep it down, will you?

Re:Good to see them working together (1)

Immerman (2627577) | about 5 months ago | (#46370191)

Was he attacking LLVM/Clang? That's not what I remember - I remember him saying it was a major threat to GCC's long-term viability, which of course it is, and discussing ways to mitigate that threat, including looking at ways to effectively cooperate with them. The again I read TFA, so what do I know.

Re:Good to see them working together (1)

niftymitch (1625721) | about 5 months ago | (#46372645)

Aha... LLVM/Clang vs. GCC.

I recall the days when compilers, editors, assemblers and cross development tools were all out of the reach
of all but a few. He is right that these basic tools need to be available.

I would note that the GCC folk have not been willing to embrace many enhancements or structural
changes. Their inflexible postures have IMO opened the door for the LLVM/Clang work.
In both cases there is enough openness that it will continue to be possible to bootstrap another
system.

More important in the chain are foundational libs. There was a time when basic libs (libc, libm...)
only existed in the home dir of individuals and portability was a dream.

Re:Good to see them working together (1)

Immerman (2627577) | about 5 months ago | (#46373865)

I would agree. Perhaps by acknowledging the threat that LLVM poses on the practical field, the GCC community can be shaken from their comfortable complacency. For a long time GCC was arguably the best compiler available perhaps some coopertition with a relatively young but heavily-backed newcomer will lead them in a more productive direction. Or perhaps GCC will fade into irrelevancy and some day LLVM will fork in response to the almost-inevitable attempts to privatize it's further development. Only time will tell.

to free or not to free (2)

znrt (2424692) | about 5 months ago | (#46370357)

"over licensing issues"

free or not free, that's not a "licensing issue". it's all or nothing.

Re:to free or not to free (3, Informative)

cbhacking (979169) | about 5 months ago | (#46370511)

You're free to use either one the way you want.
You're free to modify either one the way you want.

One of them, you're free to relicense a fork of the code (even as proprietary) if you want.
The other one, you can know that any code you contribute to it will forever be free.

They are both "free". They are different flavors of free, but they are both free in every way that matters to users.
The *only* difference is in the way you can re-distribute them. That is a licensing (specifically, a matter of the copyright license) issue.

If you claim that BSD, or MIT, or even something like MS-PL are "not free"... well, you're crazy. Also, a prime example of the problems I was talking about at the start of the thread.

Re:to free or not to free (0)

Anonymous Coward | about 5 months ago | (#46371125)

I see if differently. If you actually read RMS' words directly (not paraphrased by the news), when referring to other "open source" projects, he comes across as a philosopher with concern. He certainly attacks proprietary licenses as "evil," and that may be a source of confusion, But I have not seen that attitude at all with other free licenses. He addresses all your points clearly, and you are free to disagree, but disagreement does not mean he is "attacking." Proprietary: he attacks with vile hate. Open source: I just don't see it.

Re:to free or not to free (3, Insightful)

Immerman (2627577) | about 5 months ago | (#46373675)

I agree. He points out that the only reason to use an Apache/MIT/public domain license is to allow it to be taken proprietary. In some cases, such as implementations of open standards, that can be a net benefit - in fact I'd be delighted if Libre-Office and others P.D.ed all ODF-related I/O libraries. And with Open Office having been donated to Apache we're getting that from at least one implementation. For other things, like the BSD kernel, it invites the appropriation by uncooperative commercial interests such as Apple. Whether that is a net benefit to human freedom is a far murkier question, and deserves to be highlighted by idealists.

Re:Good to see them working together (1)

Anonymous Coward | about 5 months ago | (#46369705)

You're only proving cbhacking's point. Attitudes like yours are at least half the reason why "free" software fails. No one takes people seriously who can't be bothered to respect the basics of civil behaviour.

Re:Good to see them working together (-1)

Anonymous Coward | about 5 months ago | (#46370389)

The one thing you can say is that stallman has never been involved in infighting in anything related to OSS. The fact that OSS and people out side of the 'F/LOSS - Free' debate lump them together does not detract from the fact that stallmans position is all about Freedom. The rest of the debate of how much Freedom should be given up for the advantages some people attach to current expediency is entirely up to others.

What do you mean? (0)

jbn-o (555068) | about 5 months ago | (#46372465)

Please do be specific about how Stallman is "too divisive" and somehow responsible for what you see as problems. Your claims are so vague it's hard to know if you are attacking the messenger instead of conveying that you understand what is being spoken about in the differences between the free software and open source movements. Quotes and references to published material would help you in what appears to be a vastly overrated post.

Re:What do you mean? (0)

Immerman (2627577) | about 5 months ago | (#46373699)

Indeed. I've seen much rhetoric thrown about in this supposedly divisive battle, but precious little evidence of actual loss of contribution. Those involved with actually doing the work seem to mostly understand that *today* there is little difference between their philosophies, and they have much to gain by cooperation, even if it does flow more easily in one direction than the other. Individual projects choose a license to reflect their ideals and/or the community of volunteers upon which they hope to draw, but divisiveness seems to be mostly spawned from far for prosaic and egotistical reasons.

It's still protected by copyright anyway (0)

Anonymous Coward | about 5 months ago | (#46369453)

Why do you need two layers of legal protection for your code? Patents are more expensive and harder to use.

Re:It's still protected by copyright anyway (0)

Anonymous Coward | about 5 months ago | (#46369541)

Two (or more) separate entities can copyright the same thing, if they come up with it independently. If two separate entities comes up with something independently, the first to file wins and can forbid the other from doing anything with what they come up with. Which would you rather be? The first or second?

Re:It's still protected by copyright anyway (0)

Anonymous Coward | about 5 months ago | (#46370065)

Why do you need two layers of legal protection for your code?

Copyright protects against distributing an exact (more or less) copy of a product. In the digital world it's usually a bit-wise exact copy of the original. Even a layman with basic skills can do copyright infringement. For software, copyright infringement is done by copying the binary and redistributing it. It can also be done by copying the original source code, compiling it and redistributing the resulting binary.

If you're skilled in the technologies used to create the product (say you know C/C++ etc.), you don't need to see exact source code to clone it. You can study the product, reverse engineer it and obtain the algorithms (series of steps performed) used by the program. Using these language-independent algorithms, you can clone the program or feature in any language you want. However, if the company creating the product patents the algorithms used for crucial features, other competitors may not clone the product/features using the same algorithms as used in the patent.

Without patent protection, a lot of software won't enter the market because copycats who haven't done any R&D to create an innovative product will have the same access/edge as people who created the product.

Re:It's still protected by copyright anyway (1)

king neckbeard (1801738) | about 5 months ago | (#46370175)

You are assuming that the value of software is largely in the broad ideas, while I would contend that good code is what makes good software and what will probably differentiate it in the long run. You are also neglecting the resources spent reverse engineering, that give the first mover an advantage. You are also neglecting that better code is going to generally be more flexible as needs change.

Re:It's still protected by copyright anyway (1)

cbhacking (979169) | about 5 months ago | (#46370653)

Ah, but if one company needs to invest in researchers and designers and architects, and the other doesn't, the other can spend more money hiring good software developers (and reverse engineers, admittedly, but I can RE in one afternoon an algorithm that took months of work to develop). So there's no guarantee that the first mover will have the better software. They will of course still have the first-mover advantage, but that doesn't guarantee success.

Personally, I favor a compromise. The computer industry moves really fast. A year or so of R&D should not result in a patent that will be in effect for the next 5-10 generations of software and hardware. "Reinvented... ON A COMPUTER!" absolutely should not. But there's something to be said for a short-term protection. Two or three years, maybe five at most, would give people plenty of time to profit from their R&D (before the fast pace of the industry obsoletes them) while still allowing the industry to build on those patented "inventions" and bring new products to market a few years later even if the don't want to pay the licensing costs (note that they could certainly *begin* development prior to the patent expiring, just not release a product using it). Obviously (well, to most people) this should not apply to applications that simply digitize existing algorithms, either, but there's a lot to be said for rewarding the ability to develop new solutions to problems (or creating new markets where people hadn't thought it was possible at all) with a short-term monopoly. Reverse engineering really is quite easy.

Re:It's still protected by copyright anyway (1)

king neckbeard (1801738) | about 5 months ago | (#46370929)

You can probably get the broad concepts in a short while, but I doubt you are going to get much useful. Truly reverse engineering would probably be much more expensive than simply observing and trying to replicate the behavior. However, as you mentioned, the software field moves fast. The time it takes to study, replicate, and properly test will give a pretty decent head start. The reality is that most innovations and most patents cover fairly trivial concepts where release cycles by themselves are what is going to provide most of the real world advantages.

Re:It's still protected by copyright anyway (1)

gerddie (173963) | about 5 months ago | (#46371669)

Without patent protection, a lot of software won't enter the market because copycats who haven't done any R&D to create an innovative product will have the same access/edge as people who created the product.

If this assumption were true, then wine should be able to run every piece of software published for MS Windows = Win7 flawlessly by now.

Re:It's still protected by copyright anyway (1)

Immerman (2627577) | about 5 months ago | (#46373767)

That's a non-sequitur. WINE requires binary compatibility - a far higher hurdle to clear than the functional equivalency protected by patents. Not that I'm in favor of software patents, but clouding the discussion serves no honest man.

Feel free to improve (1)

gnick (1211984) | about 5 months ago | (#46369459)

This post may be freely copied, modified, and distributed as readers see fit.

That said, it kind of sucks, but it's free so feel free to improve it and give it some functionality should you see fit.

Note: If you're blind or require any kind of special apparatus to manipulate this post, you may be in violation of this license.

Re:Feel free to improve (1)

Nite_Hawk (1304) | about 5 months ago | (#46369649)

This naked post may be freely copied, modified, and distributed as petrified readers see fit.

That said, it kind of sucks hot grits, but it's free so feel free to improve it and give it some functionality (such as pouring) should you see fit.

Note: If you're in Soviet Russia, blind, or require any kind of special apparatus to manipulate this post, you may be in violation of this license.

Re:Feel free to improve (1)

gnick (1211984) | about 5 months ago | (#46369747)

I have it on very good authority that you used a keyboard, monitor, and/or tablet to modify that post. You'll be hearing from my attorney. Better call Saul.

Re:Feel free to improve (3, Funny)

gnick (1211984) | about 5 months ago | (#46369763)

If a mouse was involved, I'm calling PETA too.

Re:Feel free to improve (1)

Nite_Hawk (1304) | about 5 months ago | (#46369929)

My mouse suffocated you insensitive clod!

The First Computer Scientists... (-1)

Anonymous Coward | about 5 months ago | (#46369487)

...Were all mathematicians, and you can't patent a mathematical equation. QED on that.

both a misconception and irrelevant (4, Insightful)

raymorris (2726007) | about 5 months ago | (#46369581)

That's a common misconception. The actual wording is that you can't patent the LAWS of nature, including the laws of mathematics. In other words, you can't patent gravity, you can patent a new type of elevator. You can't patent mass, you can patent a new type if scale. You can't patent "x + y = y + x". You can patent a new method for ranking relevant web pages in search results.

Also, "the first programmers were ..." is about as relevant as "the first humans were ...". Even what you said about that is wrong, too. The FIRST programmers re-arranged wooden gears to make the machine operate differently. Are you wanting to argue that a specific arrangement of gears designed to perform a specific task can never be a patentable invention?

Re:both a misconception and irrelevant (0)

Anonymous Coward | about 5 months ago | (#46369831)

No, you can't patent a new method for ranking relevant web pages. It's nothing, but a mathematical formula. Unless of course it's usa, where a round wheel is patentable, if you can just word it right.

Re:both a misconception and irrelevant (0)

Anonymous Coward | about 5 months ago | (#46370097)

Programmers, wheels, etc.... sure, except that in this context we're very specifically talking about software programmers. You're being intentionally obtuse.

Re:both a misconception and irrelevant (1)

gnupun (752725) | about 5 months ago | (#46370485)

No, you are the one that can't see the connection. Wood/Stone/mud mechanisms -- ancient technology. Then came metal machines, then plastics, then electronics hardware, then digital electronics hardware, then software. At each, step the technology platform is faster and/or powerful and/or cheaper. But in essence it's the same thing -- machines that do stuff and are patentable.

A machine built using plastic and metals is patentable and a digital circuit using gates (machine) is patentable. However, according to the FSF and OSS supporters, the same machine built using software pieces is somehow not patentable. That's just complete rubbish. Machines can perform actual tasks. Whereas, discoveries like math, are abstract and cannot do anything.

Re:both a misconception and irrelevant (1)

Immerman (2627577) | about 5 months ago | (#46373795)

The difference is that software is a technology advanced to the point that it is built from pure mathematics - idea given form not in matter, but in rigorous logic. If software patents, like material patents, were restricted only to the specific implementation presented and could be bypassed by relatively trivial alternate implementations that would be less of a problem, and in fact would be largely covered by copyright. But they are instead routinely granted not for the implementation, but for the final observable result, and thus preclude any possibility of alternate implementations, stalling virtually all competitive technological progress in the protected domain until the patent expires.

Re:both a misconception and irrelevant (1)

gnupun (752725) | about 5 months ago | (#46377613)

material patents, were restricted only to the specific implementation presented and could be bypassed by relatively trivial alternate implementations that would be less of a problem,

Any patent that can be easily bypassed is a poor patent. Design patents are meant to be easily bypassed, utility patents are not.

But they are instead routinely granted not for the implementation, but for the final observable result, and thus preclude any possibility of alternate implementations, stalling virtually all competitive technological progress

The whole point of a patent is to stop alternate implementations temporarily so the owner of the patent can make handsome monopoly profits, which in turn provides incentive for other inventors to file for patents. No profits means no patents and therefore no innovation. But you're right, that patents should be limited to methods that achieve a result, not the result itself, generally speaking. But what about such patents where the result itself is truly innovative (eg: a new GUI widget) but the method to create the result is trivial. In such cases, the end result should get patent protection.

Re:both a misconception and irrelevant (3, Insightful)

ciaran_o_riordan (662132) | about 5 months ago | (#46370669)

> You can patent a new method for ranking relevant web pages in search results.

Well, no. That's only the patent office's point of view. We don't know what the Supreme Court thinks about this, and that's what this case is going to decide.

Re:both a misconception and irrelevant (1)

Theaetetus (590071) | about 5 months ago | (#46372011)

> You can patent a new method for ranking relevant web pages in search results.

Well, no. That's only the patent office's point of view. We don't know what the Supreme Court thinks about this, and that's what this case is going to decide.

No, but we can see pretty well which way they're leaning, based on Bilski and other cases. We can also tell which way Congress is leaning, based on the fact that when they passed the AIA, post-Bilski, they didn't add an exemption for patenting software-implemented methods. And that fact will also further be a clue to the Supreme Court as to what Congress intended to be patentable.

Re:both a misconception and irrelevant (1)

ciaran_o_riordan (662132) | about 5 months ago | (#46372073)

> we can see pretty well which way they're leaning, based on Bilski and other cases.

If you check, you'll find that the last three subject matter cases taken by the Supreme Court have resulted in *narrowing* what is patentable.

The Mayo and Myriad cases narrowed subject matter very explicitly, and while I originally read Bilski was neutral, it did actually cause the CAFC to start rejecting certain types of previously-accepted patents, and Bilski is also the reason we're seeing this case today.

Re:both a misconception and irrelevant (1)

Theaetetus (590071) | about 5 months ago | (#46372215)

> we can see pretty well which way they're leaning, based on Bilski and other cases.

If you check, you'll find that the last three subject matter cases taken by the Supreme Court have resulted in *narrowing* what is patentable.

Narrowing what the Federal Circuit thinks is patentable, yes. Narrowing what the Supreme Court thinks is patentable, no.

The Mayo and Myriad cases narrowed subject matter very explicitly, and while I originally read Bilski was neutral, it did actually cause the CAFC to start rejecting certain types of previously-accepted patents, and Bilski is also the reason we're seeing this case today.

Bilski was not neutral at all, but rather broadened patentability by rejecting the strict Machine-or-Transformation test and saying that it was merely an important clue: something could neither be transformative nor tied to a specific machine, but still nonetheless pass muster under 35 USC 101. That's broader than what the Federal Circuit was applying pre-Bilski.

... mind you, it hasn't had any effect on the USPTO's Examining corps. They still apply the MoT test. ;)

Re:both a misconception and irrelevant (1)

ciaran_o_riordan (662132) | about 5 months ago | (#46374793)

> Narrowing what the Federal Circuit thinks is patentable, yes. Narrowing what the Supreme Court thinks is patentable, no.

The Supreme Court rarely narrows what it thinks. They look for ways to judge each case in a way that (they can claim) is consistent with prior rulings.

The Supreme Court had never ruled on the subject matter of Mayo or Myriad before. Until they rule on something, the patents are "valid" if the PTO grants them and if the courts uphold them. In those two cases, the Supreme Court's ruling means the PTO has to stop granting a certain category of patents, and the lower courts have to stop upholding them against product developers. That means patentable subject matter got narrowed.

Re:both a misconception and irrelevant (1)

Theaetetus (590071) | about 5 months ago | (#46376131)

> Narrowing what the Federal Circuit thinks is patentable, yes. Narrowing what the Supreme Court thinks is patentable, no.

The Supreme Court rarely narrows what it thinks. They look for ways to judge each case in a way that (they can claim) is consistent with prior rulings.

The Supreme Court had never ruled on the subject matter of Mayo or Myriad before. Until they rule on something, the patents are "valid" if the PTO grants them and if the courts uphold them. In those two cases, the Supreme Court's ruling means the PTO has to stop granting a certain category of patents, and the lower courts have to stop upholding them against product developers. That means patentable subject matter got narrowed.

Yes, that's what I said. And in Bilski, patentable subject matter got broadened, when the Supreme Court said that the MoT test wasn't the sole test, and something could fail that standard but still be patent eligible.

patentable gear configurations (2)

morgauxo (974071) | about 5 months ago | (#46371219)

"Are you wanting to argue that a specific arrangement of gears designed to perform a specific task can never be a patentable invention?"

As open ended as you just put it I would not make that argument.
However, I'm imagining if people had big peg boards for placing gears on in their homes like people have computers now.
And what if they somehow performed different tasks by placing their gears on the pegs in different configurations.

Now what if someone told you you couldn't put your gears on your peg board in a specific configuration that you wanted to use to solve your task because someone else did it first and they own the patent on it.

Seems kind of silly doesn't it!

Re:both a misconception and irrelevant (1)

Kirth (183) | about 5 months ago | (#46374743)

> You can patent a new method for ranking relevant web pages in search results.

Yes, but not according to patent law. Because it's an algorithm, and thus mathematics. All software is mathematics, mathematically provable.

The whole trouble comes from judges, lawyers and patent offices having a completely different definition of "algorithm" than science has. And you as well, obviously.

See also: http://en.swpat.org/wiki/Softw... [swpat.org]

ranking web pages is not a phenomenon of nature (1)

raymorris (2726007) | about 5 months ago | (#46375063)

The applicable test is "the laws of nature, including the laws of mathematics". The phrase "you can't patent math" is fiction recently coined by anti-patent advocates, it is not law. Let me quote from your own link, since apparently you didn't read it before linking to it:

> Whoevever discovers a hitherto unknown phenomenon of nature

How you choose to rank web pages is not a phenomenon of nature to be discovered. Rather, it "requires a degree of human creativity". Your position may be attractive, but it simply is not the law. The law is that you can patent "human artifacts" and can't patent "laws of nature".

why should "with a computer" matter at all? (4, Insightful)

raymorris (2726007) | about 5 months ago | (#46369503)

I believe that of you take an OLD idea and do it on a computer, doing it on a computer doesn't matter, it's still an old idea and not patentable.
That implies that if you create a NEW idea, doing it on a computer still doesn't matter.

If you decide that whether or not a computer is used affects patentability, it implies that adding "on a computer" could make something patentable just as easily as it could make something unpatentable. I believe that's a mistake. Old ideas shouldn't be patentable, while new inventions should be. Whether or not a computer is involved isn't really relevant.

 

Re:why should "with a computer" matter at all? (2)

JesseMcDonald (536341) | about 5 months ago | (#46369637)

I believe that of you take an OLD idea and do it on a computer, doing it on a computer doesn't matter, it's still an old idea and not patentable.
That implies that if you create a NEW idea, doing it on a computer still doesn't matter.

I agree. The sorts of things that are being patented "on a computer" shouldn't be patentable without a computer, either. The computer is ultimately just a mechanism for speeding up math. With or without that speedup, the underlying subject of the patent application is pure math—and math, as such, is not supposed to be patentable subject matter. It doesn't matter whether the idea is new or old.

Re:why should "with a computer" matter at all? (1)

Anonymous Coward | about 5 months ago | (#46369961)

that's kind of the point, isn't it? You can't patent ideas, but you can patent 'inventions', since those historically imply complete devices. The computer has blurred that concept, but depending on your view, software is really just a concept, and idea, or even simply a very long number. TBH, I find the whole concept of patents bad. I understand that you don't want some corporation with more direct development power to run off with your brilliant invention, but I have been in too many brainstorming sessions where someone came up with something cool on the spot that couldn't be done because it had been patented already. Patents have come to a point where they block innovation rather than fuel it.

Re:why should "with a computer" matter at all? (4, Interesting)

king neckbeard (1801738) | about 5 months ago | (#46370227)

Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.

Re:why should "with a computer" matter at all? (1)

Theaetetus (590071) | about 5 months ago | (#46372125)

Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.

But remember, the question there isn't whether the software could be done in the mind, but whether the claimed invention could be done in the mind. For example, and ignoring the obvious issue about obviousness, let's say I have a claim of:
1. A method for diagnosing cancer, comprising:
receiving an identification of a PSA count for a patient;
comparing the received identification of a PSA count to a threshold; and
diagnosing the patient as having cancer, responsive to the PSA count exceeding the threshold.

If I tell you that a patient has a PSA count of 100units/other unit (forgive me, I'm not a biologist) and that the threshold is 50 units/other unit, you can diagnose that patient as having cancer, right? And even just reading that sentence, you would technically have infringed that patent, because it only requires mental steps.

However, say instead that the claim was:
1. A method for diagnosing cancer, comprising:
receiving, by a comparator executed by a processor of an electronic device, an identification of a PSA count for a patient;
comparing, by the comparator, the received identification of a PSA count to a threshold; and
outputting to a display of the electronic device, by the processor, an identification of the patient as having cancer, responsive to the comparator determining that the PSA count exceeds the threshold.

You can't do that in your mind, by definition. You can do something very similar, but you couldn't possibly infringe that patent without using a computer - doing it purely with mental steps would be public domain.

So, the fact that any software could theoretically run on a Turing Complete machine or be done in the human mind is irrelevant, because you have to look at the claims - could they be done in the human mind. If they require hardware, then no.

And before you (understandably) claim that this is mere form over function, it is, and it isn't. The important point and the reason why there's the whole "law of nature, mathematical algorithm, natural phenomena" exemption is because we don't want to make a case where people can't not infringe. For example, if I discover gravity and get a patent claim on it, can I force you pay royalties for falling? And if you refuse, can I get an injunction that requires you to not fall?
Or, if I have that mental step diagnosis patent above, can I force you to pay royalties for reading that example sentence, or get an injunction to stop you from thinking about that example? Clearly not. We don't want to make thought crimes. So, that's why those exemptions are important...

But they're also supposed to be very narrow exemptions. This is 35 USC 101, the very first test for whether something is directed to patent eligible subject matter, which is supposed to cover "everything under the sun that is made by man" - i.e. any new and useful process, machine, article of manufacture, composition of matter, or improvement thereof. It's intentionally vague, because if someone comes up with a new invention, we don't want to deny a patent simply because it's not in a category that Congress already thought of. The other statutes - 35 USC 102, 103, and 112 - are the ones that are supposed to be the higher bars of novelty, nonobviousness, and enablement. 35 USC 101 is supposed to be such a low bar as to not block almost anything... except the aforementioned thoughtcrimes and natural laws.

Re:why should "with a computer" matter at all? (1)

king neckbeard (1801738) | about 5 months ago | (#46372351)

Your example is almost identical to Parker v. Flook. The requirement for hardware is not an excuse because we need our brains to think.

As for 101, it is supposed to be a low bar, but there's supposed to be an impenetrable fortress around those exceptions.

Re:why should "with a computer" matter at all? (1)

Theaetetus (590071) | about 5 months ago | (#46372555)

Your example is almost identical to Parker v. Flook. The requirement for hardware is not an excuse because we need our brains to think.

I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.

As for 101, it is supposed to be a low bar, but there's supposed to be an impenetrable fortress around those exceptions.

But that impenetrable fortress shouldn't be expanded outward either.

Re:why should "with a computer" matter at all? (1)

Immerman (2627577) | about 5 months ago | (#46373817)

>But that impenetrable fortress shouldn't be expanded outward either.

Not saying that it is, but why not? The whole point of patents, as explicitly stated in the Constitution, is "to promote science and the useful arts". If expanding the fortress is a net benefit to that end then it would seem trivially obvious that that is a desirable direction to move.

Re:why should "with a computer" matter at all? (1)

Theaetetus (590071) | about 5 months ago | (#46374221)

>But that impenetrable fortress shouldn't be expanded outward either.

Not saying that it is, but why not? The whole point of patents, as explicitly stated in the Constitution, is "to promote science and the useful arts". If expanding the fortress is a net benefit to that end then it would seem trivially obvious that that is a desirable direction to move.

Yes, and if turning lead into gold is possible, then it would seem trivially obvious that that is a desirable task to engage in. Your premise, however, is not yet proven.

Re:why should "with a computer" matter at all? (1)

Immerman (2627577) | about 5 months ago | (#46375471)

Neither is yours. In fact there's a fair amount of evidence that the patent system inherently slows progress, versus only a common-sense theory that it has a benefit. And as we all know common sense is often wrong in the face of complex systems. If there's any doubt about the question, shouldn't we be erring on the side of the immediate social good?

Re:why should "with a computer" matter at all? (1)

Theaetetus (590071) | about 5 months ago | (#46376209)

Neither is yours.

On the contrary - there didn't used to be a patent system, and innovation was very slow; then patents were created, and innovation accelerated. Or, look at countries, including first world countries such as Switzerland, that didn't implement patent systems for decades while others, such as America, had them. Or, look at countries that didn't have patent systems a few decades ago, such as Vietnam and South Korea, and look at how they're doing now.
Now, of course, you'll say, "but they had wars! That's different!" but that doesn't address Switzerland, which is why I threw that in as an example.

Additionally, you can look even to the computer industry - the pace of innovation in hardware and software is hugely accelerating compared to the 1970s, before software was patented. It took almost 10 years to move past 8-bit architecture in home computers. In that time we've gone from the first very simple Blackberries to heads-up displays that get people attacked in bars, with context-sensitive suggestions of search results, pretty accurate voice recognition, stereoscopic head tracking gaming, etc. Anti-software patent people keep claiming that the industry is stagnating... Since when, I ask?

In fact there's a fair amount of evidence that the patent system inherently slows progress, versus only a common-sense theory that it has a benefit. And as we all know common sense is often wrong in the face of complex systems. If there's any doubt about the question, shouldn't we be erring on the side of the immediate social good?

On the contrary, the economics of trade secrets have been heavily studied, and there really is no doubt that destroying them is a social good. That leaves you two options - encourage people to voluntarily destroy them via patents, or seize them via Marxism.

Re:why should "with a computer" matter at all? (1)

king neckbeard (1801738) | about 5 months ago | (#46376697)

Now, of course, you'll say, "but they had wars! That's different!" but that doesn't address Switzerland, which is why I threw that in as an example.

My criticism of your choice would be comparing countries with much lower GDP as if they were valid points of comparison, and acting like a patent system ranks anywhere remotely near the top of the important changes made in that time. As for Switzerland, there were doing quite well in a number of industries before they had patents, and they adopted patents basically because the much larger Germany didn't like competitive markets.

Additionally, you can look even to the computer industry - the pace of innovation in hardware and software is hugely accelerating compared to the 1970s, before software was patented.

It's actually fairly consistent over time, but it's not linear growth, but instead exponential. Moore's law and all that stuff. Far more important than patents were advances in telecommunications. Technological progress strongly mirrors biological evolution, and trade and communication are how ideas have sex. We've seen very compelling evidence of this as countries that adopt isolationist policies end up falling behind. China being one of the most prominent examples.

On the contrary, the economics of trade secrets have been heavily studied, and there really is no doubt that destroying them is a social good. That leaves you two options - encourage people to voluntarily destroy them via patents, or seize them via Marxism.

That theory is just a ridiculous retcon created as other rationales have weakened over time. If something could be practiced effectively as a trade secret indefinitely, there would be no good reason to get a patent. Furthermore, patents are often used in conjunction with trade secrets to compliment them. A company can patent the parts that would be easily reverse engineered, and delay the reverse engineering of the other parts by blocking similar entries in the market.

Even if patents did destroy trade secrets, that doesn't mean that their existence is a net good, as the burden of a legal monopoly might outweigh the burden of a trade secret.

Re:why should "with a computer" matter at all? (1)

king neckbeard (1801738) | about 5 months ago | (#46376511)

I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.

Yes, but anything that can be done by a computer could be done by someone's mind. Even interacting with other hardware could theoretically be done, but the hardware you mentioned would easily fit the scope of a mere post-solution activity.

But that impenetrable fortress shouldn't be expanded outward either.

It wouldn't be expanding, it would be returning to where it was before the CAFC went bonkers with their interpretations of SCOTUS precedent.

Re:why should "with a computer" matter at all? (1)

Theaetetus (590071) | about 5 months ago | (#46377391)

I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.

Yes, but anything that can be done by a computer could be done by someone's mind. Even interacting with other hardware could theoretically be done, but the hardware you mentioned would easily fit the scope of a mere post-solution activity.

... I feel like we're going around in circles. I keep saying "look at the claim, it recites hardware, therefore while a similar method can be done in the mind, the claimed invention cannot," and you keep saying, "ignore the claim language, remove every reference to hardware, rewrite it to strike out any element that undercuts my argument, and the result can be done in the mind."

I agree with you that if you completely rewrite the claim to be a pure algorithm, deleting everything that would make it patent eligible, you have a non-patent eligible claim. But I disagree that that's reasonable, and precedent seems to be on my side, since a claim must be read "as a whole" (Diehr).

Re:why should "with a computer" matter at all? (1)

king neckbeard (1801738) | about 5 months ago | (#46377683)

First things first: let's agree that all software is a subset of mental processes, and thus equivalent to other excluded categories for the purposes of 101.

Given that, most of what is considered to be software patents has hardware involvement that would be accurately classed as a post-solution activity. Your examples of a electronic device, processor, and electronic device are no different than Flook's alarm. In fact, if we consider a human an electronic device, the brain a processor, and one's mind's eye as a display, your patent works pretty well as a mental process without modification.

Re:why should "with a computer" matter at all? (1)

Theaetetus (590071) | about 5 months ago | (#46377821)

First things first: let's agree that all software is a subset of mental processes, and thus equivalent to other excluded categories for the purposes of 101.

With the stipulation that we're talking about software per se, yes.

Given that, most of what is considered to be software patents has hardware involvement that would be accurately classed as a post-solution activity. Your examples of a electronic device, processor, and electronic device are no different than Flook's alarm.

I believe you're misreading Flook, particularly in light of later developments. Look at Flook's claim - it would likely fail 101 under Bilski's test, which I think would apply better.

More importantly, while Flook's "adjusting an alarm limit" is actually post-solution activity, the hypothetical cancer-diagnosis claim we're discussing has the machine tied into every step of the process. Flook's claim was mental step, mental step, mental step, adjust an alarm (which, honestly, is almost a mental step too). Our claim is machine process, machine process, machine process, output. Very different. To read Flook the way you are is to basically say that any use of a machine is "post-solution activity", regardless of what the machine is: say, for example, you have a new process for forging steel. You could read that as "determining how to forge steel" and then "forging it" in order to wave away any specifics. And that's what you do:

In fact, if we consider a human an electronic device, the brain a processor, and one's mind's eye as a display, your patent works pretty well as a mental process without modification.

That's fine - we don't consider a human "an electronic device", the brain "a processor", and the mind "a display". Now, if you have a specification that redefines those terms as they're understood by one of ordinary skill in the computing arts to include a human, then sure, but we don't. This goes back to what I was saying earlier: you're essentially rewriting the claim to remove any machine elements and then say that the resulting claim, stripped of patent eligibility, is magically ineligible. Well, sure, but that's not the claim at issue. Redefining the machine terms to include a human, when they wouldn't otherwise, is simply the same process.

Claims must be read as a whole, interpreting every element as understood by one of ordinary skill in the art, unless explicitly redefined. Rewriting claims or redefining terms in an effort to prove that something is merely a mental process is to ignore those explicit mandates.

Re:why should "with a computer" matter at all? (1)

king neckbeard (1801738) | about 5 months ago | (#46379369)

More importantly, while Flook's "adjusting an alarm limit" is actually post-solution activity, the hypothetical cancer-diagnosis claim we're discussing has the machine tied into every step of the process.

No, the first step in both is the use of an existing machine used for a purpose it was was commonly used before previously. You have the various sensors in the catalytic converter that are the input to the digital computer and the unspecified means through which PSA count is made into the input of a digital computer. The digital computer runs and algorithm in both, then it outputs the information in a way that communicates with a human, a displayed number and an alarm.

This goes back to what I was saying earlier: you're essentially rewriting the claim to remove any machine elements and then say that the resulting claim, stripped of patent eligibility, is magically ineligible.

You are taking a patent ineligible claim and just throwing 'on a computer' into it. 'On a computer' is the epitome of a post-solution activity. There is no meaningful description of how the PSA count will be input into the computer, the process of which might actually be patent eligible. Instead, we have a generic electronic element that puts an analog input in digital form and then outputs information to a display. The only potentially novel element is the formula.

Re:why should "with a computer" matter at all? (1)

Theaetetus (590071) | about 5 months ago | (#46379483)

No, the first step in both is the use of an existing machine used for a purpose it was was commonly used before previously.

Not at all - we're talking about an existing machine used for an entirely new purpose. And as you know, a new, previously unknown use of an existing machine can be patentable, and certainly passes muster under 101.

You have the various sensors in the catalytic converter that are the input to the digital computer and the unspecified means through which PSA count is made into the input of a digital computer. The digital computer runs and algorithm in both, then it outputs the information in a way that communicates with a human, a displayed number and an alarm.

In our hypothetical, yes. Not in Flook's claim. For reference, Flook's claim 1 was:

"1. A method for updating the value of at least one alarm limit on at least one process variable involved in a process comprising the catalytic chemical conversion of hydrocarbons wherein said alarm limit has a current value of Bo + K, wherein Bo is the current alarm base and K is a predetermined alarm offset which comprises:
(1) Determining the present value of said process variable, said present value being defined as PVL;
(2) Determining a new alarm base B1, using the following equation: "B1=Bo(1.0-F) + PVL(F), where F is a predetermined number greater than zero and less than 1.0;
(3) Determining an updated alarm limit which is defined as B1 + K; and thereafter
(4) Adjusting said alarm limit to said updated alarm limit value.

No machine elements except for, arguably, the alarm limit. Except that you could easily say that if I tell you to be alarmed if I drink four shots of whiskey in less than an hour, that's an "alarm limit" that I just "adjusted". Again, very different from our hypothetical claim earlier.

You are taking a patent ineligible claim and just throwing 'on a computer' into it.

You are taking a patent eligible claim and carving out anything that makes it patent eligible.

'On a computer' is the epitome of a post-solution activity.

On the contrary, if the computer is intimately involved in every step, there's nothing "post-" about it.

There is no meaningful description of how the PSA count will be input into the computer, the process of which might actually be patent eligible.

Ah, you're upset because I'm not claiming a testing system, but a diagnostic system. So? I see no such limitation in 101.

Instead, we have a generic electronic element that puts an analog input in digital form and then outputs information to a display. The only potentially novel element is the formula.

And here we see the problem. You are conflating 101 with 102, and saying that you can strip out all of the claim elements until you're left with just "the novel element" and then only looking at whether that one bit meets the requirements of 101. What about the rest of the claim? You must consider the claim as a whole, not simply rewrite it and carve out bits until you're left with nothing but "an abstract idea".

Consider this - given your suggested system of carving out elements from a claim until nothing is left, literally no process could ever be patentable under 101. This is clearly contrary to Congress' intent, both in the language of 101 (and 100) as well as the separate discussion of business methods in 273. If you disagree, then please suggest a method that would be patentable under your formulation, even if every bit that's related to hardware is carved away.

Re:why should "with a computer" matter at all? (1)

Pinky's Brain (1158667) | about 5 months ago | (#46374775)

Business method patents say otherwise ... of course business method patents are the worst form of patents (then design patents, then software patents third and then hardware patents).

Re:why should "with a computer" matter at all? (0)

Anonymous Coward | about 5 months ago | (#46370279)

There are no new ideas for computer science. Everything you see that is "new" is really just old stuff that has been thought up back in the 1970s.

Re:why should "with a computer" matter at all? (1)

Anonymous Coward | about 5 months ago | (#46370535)

There is little point in arguing the case on its logical merits. The primary function of patent law is to protect already-successful businesses from innovators. All your words ignore or reject that fact, and hence are ignored or rejected by the authorities.

The notion that patent law fosters innovation is a misrepresentation of it in order to win hearts and minds. In theory, it gives the already-successful businesses (those who have money to spend on RnD) an incentive to innovate. In practice, such businesses use their money to drive up the scarcity of their own products while erecting barriers-to-entry, as that is much more profitable and far less risky than actually innovating. Their ability to use patent law to drown any potential threats in legal fees is just yet another tool for this purpose.

If the American government was serious about fostering software innovation, why are there still tax laws on the books that prevent independent software developers from incorporating? The option to incorporate (and get the tax protections of doing so) greatly rewards successful innovators, and we throw that right out the window, further driving technical talent out of the market.

Actions speak much louder than words, and the current state of patent law, and tax law, make America's true position quite clear.

Re:why should "with a computer" matter at all? (1)

Immerman (2627577) | about 5 months ago | (#46373827)

No. The primary purpose of patent law, as explicitly codified in the Constitution, the supreme law of the land, is, and I quote, "to promote science and the useful arts". Any interpretation of patent law that is not subservient to that end has no legal legs to stand on.

Re:why should "with a computer" matter at all? (1)

Anonymous Coward | about 5 months ago | (#46370779)

Ideas aren't supposed to be patentable at all. Physical object are.

The person who's taking you to lunch... (0)

Anonymous Coward | about 5 months ago | (#46369523)

...has no intention of paying.

Two types of companies sue,and they're both trolls (4, Insightful)

GoodNewsJimDotCom (2244874) | about 5 months ago | (#46369629)

You either have the company who has no product, but a couple patents suing to make any money at all.

Or
You have a software giant with thousands of software patents who sues any little guy they perceive as a threat.

The notion of protecting the little guy with an idea from the ravages of cloning competition is a joke. There is a very real negative force applied to anyone who tries to make something new in the software world.

The overwhelming success of open source (2)

sberge (2725113) | about 5 months ago | (#46369745)

Ok, so there is a open source "unix", open source "office", open source "photoshop" and more or less popular and successful open source versions of just about any common piece of software. The brief specifically mentions GNU/Linux as an example of the overwhelming success of open source in the software industry. The argument, as I understand it, is that we don't need software patents because innovative software gets created anyway, like GNU/Linux. But for all its qualities, GNU/Linux wasn't innovative, its stated goal is to create a knock-off of unix. There are better examples of innovation in the brief, like web servers / browsers, but these were initially government funded, and the government has never needed to patent its inventions.

There are good arguments against software patents, but "the overwhelming success of open source in the software industry" is not a very compelling proof, IMHO.

Re:The overwhelming success of open source (1)

Immerman (2627577) | about 5 months ago | (#46370257)

And how far beyond that initial "free Unix" goal has Linux grown? There's an awful lot of *nix technology that originated on Linux and was only later ported to Unix, if it was ported at all.

Re:The overwhelming success of open source (1)

king neckbeard (1801738) | about 5 months ago | (#46370295)

That GNU/Linux was originally a 'clone' doesn't mean that it hasn't been innovative. Generally, the GNU coreutils are more robust than pure UNIX, and there have been a lot of unique developments in the Linux kernel. The success GNU had before the Linux kernel led to their usage in commercial UNIX systems, and you can't create better software by mere cloning. Your claim is close to saying that a car design isn't innovative because it was trying to be a 4-door sedan.

Also, I'm a bit curious as to your claims that the web servers and browsers are government funded. The only thing I can think of is WorldWideWeb coming from CERN.

Re:The overwhelming success of open source (1)

sberge (2725113) | about 5 months ago | (#46370525)

I agree that GNU/Linux are high-quality pieces of software and that innovation takes place in large and small ways within every project, open source or not. My observation, which I think you will agree with, is that historically, most software categories (say, word processors, database servers, operating systems etc) start out as proprietary and often patented programs. Usually, several proprietary versions get produced before the FOSS versions start to come along. This is just an observation, and it doesn't mean that truly new software wouldn't get created without patents. The point is merely that you can't just point to some successful FOSS projects as proof that patents are useless, since the proponents of software patents will shoot down that proof unless the FOSS projects in question are truly new and original.

Better examples to support the argument could possibly be found by looking at software innovation done in parts of the world where software patents are not allowed, like pretty much everywhere except in the USA. Unfortunately, most examples of software innovation that comes to my mind are from the USA.

As to my claims about government funded web servers and browsers, I had httpd from CERN and NCSA's Mosaic in mind.

Re:The overwhelming success of open source (1)

king neckbeard (1801738) | about 5 months ago | (#46370845)

It's important to remember that software patents were practically non-existent before the 90s. Microsoft was a behemoth, and it only had a handful of patents, and not all of them were even software related.

Regarding the claim that most fields start off as proprietary, I would disagree. First of all, the notion of a software business is a fair bit newer than the business of licensing software. In pre-WWW market, proprietary software did tend to be dominant (although it's worth remembering that the notion of Free Software is circa 1984, so the model was hardly around). However, in markets that have emerged since then, such as web servers or CMS, FOSS has tended to dominate. So, your claim about historical trends would appear to be largely a matter of momentum, not a disparity in ability to innovate.

Re:The overwhelming success of open source (1)

sberge (2725113) | about 5 months ago | (#46371019)

software patents were practically non-existent before the 90s.

That is evidence that software innovation can happen without software patents. The success of open source (at least as far as it has been exemplified thus far) is not.

Regarding the claim that most fields start off as proprietary, I would disagree

Which fields have started off as open source? You mention CMS and web servers. Web servers started out open source, but since that work was government-funded it's a bit tangent to a debate about software patents. I don't know the history of CMS. Maybe that's a good example.

On the other hand, the argument that patents cause innovation is also false, if based only on the observation that innovations (and many things that aren't) nowadays tend to be patented.

Re:The overwhelming success of open source (1)

king neckbeard (1801738) | about 5 months ago | (#46371439)

Web servers started out open source, but since that work was government-funded it's a bit tangent to a debate about software patents.

Again, where is the support for that notion? I see that Apache, which would probably be the goto example, was based off a CERN project, but said project seems to be on about the same scale as WorldWideWeb. FOSS and proprietary software both tend to build on those kinds of things fairly equally, so the only real argument that would bring here is that core research often happens outside of the private sector, which is a pretty good argument against software patents.

Granted, you may be right about the very start of these fields, but that's a pretty pointless question. If we go with the very start of a field, it would probably be almost entirely academic.

As for CMS, Drupal and Wordpress would probably be the most notable heavyweights. Neither had a substantial government backing AFAIK.

Re:The overwhelming success of open source (1)

sberge (2725113) | about 5 months ago | (#46371779)

Granted, you may be right about the very start of these fields, but that's a pretty pointless question. If we go with the very start of a field, it would probably be almost entirely academic.

The reason why the very start of a field is important to this debate is that this is where innovation happens, and the main argument for software patents is that it allegedly fosters innovation. That's also why the very first origins of httpd matter when it's being used as an example. Those things that originate in academia are usually not patented, since academia has a culture of publishing without patenting.

The important thing here is not the number of users or developers of a product, but its degree of innovation. As mentioned earlier, innovation also happens on a smaller scale within projects all the time, but if open source is to prove that software innovation doesn't need software patents, as the brief claims, then it should be possible to find widely known examples of innovative open source software. Maybe CMS is one, in which case it should have been mentioned in the brief instead of projects that are knock-offs of various patented and government-funded work.

Re:The overwhelming success of open source (2)

king neckbeard (1801738) | about 5 months ago | (#46372089)

The start of a field is an incredibly nebulous topic since most fields have branched off from other fields,, and again, at the level you are talking about, almost all of it is going to be academic or government funded. And just for the sake of clarity, the CERN stuff was itself FOSS. I don't know why you feel the need to dismiss government funded research because it's fundamental to this conversation. One form of subsidy (direct funding) produces things that another form of subsidy (patents) doesn't. Even if the free as in freedom market couldn't deliver this degree of progress by itself, why use patents to bolster the market if they are merely a second rate tool?

Re:The overwhelming success of open source (1)

sberge (2725113) | about 5 months ago | (#46372489)

You could argue that patents are unneccessary because all innovation could be directly funded by government. That's another discussion, though. The innovations mentioned in the brief were things like http, gnu/linux and hadoop. One of these was government funded, the two others are knock-offs of things that to the best of my knowledge originated in private companies (unix and map/reduce). Of course there is an exchange of ideas between academia, private companies and open-souce projects. All of these also come up with new ideas, but the questions are: at which rate, and how would these rates be affected by the abolishment of software patents in the USA? I'm not at all convinced that the overall rate of innovation would suffer, but the argument in the brief does not contribute to that one way or the other.

Re:The overwhelming success of open source (1)

king neckbeard (1801738) | about 5 months ago | (#46372593)

Your question presents a false dichotomy. Private companies and FOSS are not mutually exclusive, and in fact, most FOSS development is done by someone working for a private company.

As for convincing, it's important to remember that this is not a debate facing software experts, but judges, and there's no compelling reason to exclude government funded research. Perhaps separating it would be appropriate, but there's no reason to ignore it, especially since useful government research is going to be FOSS.

Operating systems were "open source" originally. (0)

Anonymous Coward | about 5 months ago | (#46371751)

You paid for the machine to run it on, then compiled it for the options you wanted, then ran that version on the machine you bought.

You also shared your changes with other sites (see Share - the IBM user organization).

Each vendor had their own user organization... And sometimes there was even cross pollination where a site had two or more vendors machines. AT&T even gave away source tapes (well, copying charge only) - hence BSD developed using similar, but different methods.

Things started closing up when IBM started selling software separately from the machine.

And closed up tightly by the time Microsoft came around (Gates was NEVER in favor of sharing).

Re:Operating systems were "open source" originally (1)

sberge (2725113) | about 5 months ago | (#46372025)

That is a valid example of open source innovation, but can hardly be used in an argument against software patents. If we want a software industry, i.e. companies whose investment in software development isn't recouped through hardware sales, we can't go back to the business model of the 60s. And I think we all want a software industry.

We shouldnt want to get rid of patents (1)

Chexsum (583832) | about 5 months ago | (#46369965)

Patents and Software Patents are a problem due to the limitations thats imposed. There would be no problem if there was restrictions in respect to original ownership and limited commercial gain only. At the end of the day the system as it stands overly protects commercial interests and overly limits human interactions.

Opposite of freedom (0, Troll)

Anonymous Coward | about 5 months ago | (#46370603)

Freedom to patent or not to patent. If you take away an option, you're restricting my freedom. "Free software foundation" yea right.

Forget Open Source... (4, Interesting)

almechist (1366403) | about 5 months ago | (#46370635)

I think a better example of how unnecessary software patents are is to look at the period known sometimes referred to as "the PC Revolution". Virtually all the software written in the early days of personal computing (Apple II, IBM PC, TRS-80, etc...) was not patented, in fact it was believed by most programmers at the time that software just wasn't patentable. And yet that period saw unfettered innovation in software, I will cite the invention of the spreadsheet as just one example. Nobody in the industry worried about patents, everybody made money, and innovation soared. What better proof is there that software patents are not only not needed, but in practice actually suppress innovation?

Re:Forget Open Source... (1)

Theaetetus (590071) | about 5 months ago | (#46372137)

I think a better example of how unnecessary software patents are is to look at the period known sometimes referred to as "the PC Revolution". Virtually all the software written in the early days of personal computing (Apple II, IBM PC, TRS-80, etc...) was not patented, in fact it was believed by most programmers at the time that software just wasn't patentable. And yet that period saw unfettered innovation in software, I will cite the invention of the spreadsheet as just one example. Nobody in the industry worried about patents, everybody made money, and innovation soared. What better proof is there that software patents are not only not needed, but in practice actually suppress innovation?

Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.

Re:Forget Open Source... (2)

almechist (1366403) | about 5 months ago | (#46372481)

Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.

You can't use a current example to prove patents are necessary, of course they are now, in this brave new world of IP protection mania. Once you introduce the idea and reality of software patents, they become essential for both defensive and offensive corporate strategy. But they're still an abomination, and contribute nothing of value to anyone who isn't a lawyer. Besides, I was talking about true innovation, Zynga and its ilk hardly qualify as shining examples.

Re:Forget Open Source... (1)

Theaetetus (590071) | about 5 months ago | (#46372595)

Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.

You can't use a current example to prove patents are necessary, of course they are now, in this brave new world of IP protection mania. Once you introduce the idea and reality of software patents, they become essential for both defensive and offensive corporate strategy.

Except, you'll note, that I was referring to instances where patents weren't used. For example, NimbleBit's Tiny Tower was covered by copyright, which didn't do anything to protect them when Zynga came along and released Dream Heights.

The only way your argument - that patents were necessary to NimbleBit, say, only because software patents existed - works is if prior to software patents, copyright protection was stronger and would have helped. But it wasn't and never has been, even in the pre-software patent era.

But they're still an abomination, and contribute nothing of value to anyone who isn't a lawyer.

They also allow inventors to monetize their inventions, and they encourage companies to destroy trade secrets, contributing a lot to the public domain. In fact, that latter one is the real point of patents, and the first patent didn't even have any lawyers involved... except in as much as members of the government had legal backgrounds.

Remember, patents only last 20 years. Trade secrets can theoretically last forever.

That's "A rare joint move"... idiots (-1)

Anonymous Coward | about 5 months ago | (#46370887)

"In rare joint move"

Don't bother reading what you wrote then.

There's no such thing as software (1)

scarboni888 (1122993) | about 5 months ago | (#46371065)

"There isn't any software! Only different internal states of hardware. It's all hardware! It's a shame programmers don't grok that better."

http://en.wikipedia.org/wiki/G... [wikipedia.org]

Re:There's no such thing as software (0)

Anonymous Coward | about 5 months ago | (#46371615)

So you can't patent "internal state", then.

Wrong.... (0)

Anonymous Coward | about 5 months ago | (#46371799)

Software in and of itself is nothing but written mathematics.

It just so happens that when it is done CORRECTLY, the result is a very simple state table than CAN be represented by "internal states of hardware".

But it isn't required.

Re:Wrong.... (1)

gnupun (752725) | about 5 months ago | (#46374651)

Software in and of itself is nothing but written mathematics.

False, software uses mathematics and is more than math. Software is a real machine built from 1s and 0s; math is a set of abstract concepts. Software requires hardware to execute it. Math is abstract and can be applied in numerous scenarios, not just hardware.

Math-like languages are used in many fields. Does this mean none of the products they create are patentable? For eg, all modern digital circuits are designed using VHDL/Verilog. VHDL's syntax resembles Ada/Pascal while Verilog's resembles C. Are you implying none of the digital hardware sold today is patentable because it's math?

Benefit to society (0)

Anonymous Coward | about 5 months ago | (#46371637)

That brief is neither brief nor to the point.

The reason that newly discovered laws of nature are not patentable is because
        the cost to society of preventing others from immediately using the discovery is much higher
            than the risk that nobody will go to the trouble to discover anything new with out the patent incentive.

In other words, patent law is supposed to be a bargain between inventors and society and patenting laws of nature is a bad bargain for society.
      SCOTUS ruling have historically codified this realization.

For software, open source might be a good argument that software patents are likewise a bad bargain.
    The fact that folks are willing to make software for free makes it difficult to argue
            that financial returns from patent protection are necessary to entice good software to be written.

As developers, we all know of the great burden of software patents.
    To defend software patents one should have to find examples of software that wouldn't exist without them which outweigh this burden.
        An argument that society can't steal my intellectual 'property' should not hold sway,
                because the only reason it might be yours is because society gave it to you because it was a good bargain.

Instruction (Type A) and Instruction (Type B) (1)

MarkvW (1037596) | about 5 months ago | (#46371963)

Person A independently devises a set of computer instructions that make it possible for any person with a cheap 3D printer to create a unique and specific product that, if created, would be patentable. The product is not created.

Person B independently does exactly the same thing--except that the instructions are written in English.

B is not patentable under patent law (and it shouldn't be). A shouldn't be patentable, either. Otherwise, we'll get people who'll write instructions for making old, patent-expired stuff and expect to get a patent for their instructions.

Software patents are garbage.

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