It's not up to Justice Scalia to do the right thing. It's up to Congress. As Scalia is so fond of saying, garbage law in, garbage decision out. Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us.
I'll preempt the constitutional argument by saying that hasn't been made yet. You underestimate how strong such an argument has to be to succeed. What SCOTUS could clarify is Diamond v. Diehr. That still wouldn't be the end of our patent problems though.
>Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us.
Congress never passed a law allowing software patents, though. It was the courts (but only the lower courts, never the Supreme Court) which historically interpreted the old patent laws (written before the age of computers) to apply to software -- I don't know of any parts of Title 35 which cover software specifically. Congress could modify the law to explicitly allow software patents, but they haven't.
Nonetheless, there are two separate and completely orthogonal questions here.
1. Is it good policy to allow software to be patentable, and
2. Does existing law allow for software to be patentable?
I am fairly agnostic on question one, and about three Juris Doctorates short of being able to answer question two, but it's the Supreme Court's job to answer question two without any regard whatsoever to question one.
This article appears to be arguing about question two based on his opinions on question one, which is like arguing that a cat is a handbag because you want to be able to take it as carry-on luggage.
Even though it may be good policy for the Supreme Court to act that way, that's a separate question from whether they in fact do operate in that way.
There is extensive literature (a subset of "legal realism" which accounts strategically for judicial action) which claims that judges do in fact incorporate policy considerations in decision-making. Secondly, it's widely acknowledged that the court frequently and with considerable influence advises Congress to change the law. In that context, it might be fine & useful for this article to speak in policy terms to the Court.
This ignores how the patent statute is written. Congress sets extremely broad principles for what is patentable and leaves it to the courts to work out the details. That process of interpretation inevitably involves making policy judgments.
This isn't unusual. Constitutional concepts like "reasonable search," "cruel and unusual punishment" similarly invite courts to make policy judgments.
Not really. The court interprets the law as written by the congress. There are always some checks and balances while interpretation but that's not what the court is for.
In many cases the any court (in almost any country influenced by the French law) interprets the laws and confirms if the 'new laws' is consistent with the 'old laws/ more basic laws' and not in violation with the basic premise of the constitutions. Of course this is a over-simplification but this is at the most basic the function of the courts.
But I believe the US uses Common Law (English) and not Civil law (France and many other places) system for these matters. So judge can in the US (btw IANAL) decide if a law is valid or not based on constitutionality and previous laws.
This is absolutely correct and is an important distinction and I do confess that my statements were not very precise from that regards. However, I had a long discussion with a law professor at Berkeley where she did agree that the US Common Law is highly influenced by the French Civil Law, though many law academic in US will take an exception at the statement. Also, IANAL either but am taking a few law courses here.
"Checks and balances" isn't synonymous with "one branch of government isn't doing what I want, so a different branch of government should do it." It isn't SCOTUS's job to legislate from the bench, even if the outcome would be a net win for society. Checks and balances only comes into play here if Congress has passed a clearly unconstitutional law. In this situation that is very difficult because it has to be proven that software patents are hindering the progress of science. Perhaps that seems self evident to us techies, but a lawyer has to walk into the Supreme Court and prove it to the tune of 5 Justices. I'd rather Congress just pass a law.
Congress already passed a law. The Supreme Court interpreted it as not allowing software patents. Congress has remained silent since then.
It's the pro-software-patent people who need to petition Congress. Anti-software-patent people should merely petition the executive branch to enforce the law as it stands.
Checks and balances, not sharing of responsibility. The Supreme Court exists to protect Americans from unjust laws, not to write laws that congress should be writing.
I think you underestimate how much the SCOTUS considers the interests involved in a case not just the law.
That's not saying that SCOTUS would invalidate software patents, just the opposite. The SCOTUS discussion I've heard have turned on how invalidating software patents would be a fairly short step to invalidating all patents and there are too many interests involved to let that happen.
The argument in the supreme court debate I remember was essentially "software parents as a generic are absurd but tossing them out completely would be an earthquake that we don't want to play so we need a line that would allow some but not all software patents". Nothing turning on technicalities in the overall approach even if the solution they'd grope for would likely turn on said technicalities.
This is absolutely correct. The best Supreme court could do is decide on a case-by-case basis and settle against the patents (as they did in Bilski case). They would never ever set a precedent that can potentially go as far as invalidating something that is billions of dollars worth.
This supreme court is one of the most conservative of all time in terms of interpreting the law and limitation of its own power.
The solution can only come from the congress. The present supreme court will shy from setting a strong precedent. I don't think this is a bad thing. Relying on court to change the law is a sign of an unhealthy society who cannot control its elected representatives.
You underestimate how strong such an argument has to be to succeed.
I wish I could upvote this wise advice ten times. even if patents made it to the top of the Supreme Court docket today and they justices interrupted their summer holidays tomorrow to consider the issue, a badly-thought-out case could just as easily end up extending patent terms to the 95 years that copyrights enjoy.
Why does it have to be the supreme court? Why can't the industry tell Congress "This sucks, fix it", the way the military did with Don't ask, don't tell?
VCs just aren't as good at that whole "leadership" thing as much as generals I guess? (yes, I'm trying to goad someone to action.)
> Why can't the industry tell Congress "This sucks, fix it"
Because the part of the industry which has money and congressional ear either protected (by a huge patent portfolio) or in the game of using their patent portfolio aggressively.
> the way the military did with Don't ask, don't tell?
1. the military is a major reason why DADT was introduced in the first place
2. apart from Mullen (who mostly punted the responsibility to congress), the military (active, retired officers really don't count) did not do anything until well into BO's term, even though repealing DADT was one of BO's campaign issues
the military and DADT really is not a good example of "this sucks, fix it".
As a software programmer I don't agree with this view that software patents are wrong in principle. There I said it!
Software just as much as hardware can be used to "express" something new. I.e. to invent something.
An patentable invention is a novel "solution to a problem which is NON-OBVIOUS to someone skilled in the art".
The real issue with software patents is that they are granted far too easily. The test that seems to be applied by the patent examiners is "is that new?". However, they should be asking "given the problem the inventor is trying to solve
is the solution (the invention) really non-obvious to some one skilled in the art?".
However, even though I think that software patents, with the proper examination standards are just as valid as hardware patents I think there is a case for limiting (or even banning) ALL patents - NOT just software patents.
One idea would be the requirement that a working prototype has to be produced and seen to be working. That, along with a proper non-obviousness test, would limit companies going for patent "land grabs".
As the article points out, software is also protected by copyright, and the article doesn't mention that it's covered by trade secret protection as well. The key difference is that patent protection applies to people who independently create something, whereas the other two protection methods don't.
So when I hear engineers say they like patents, first of all I assume that they've never worked for a company that's been sued for patent infringement (and that they optimistically assume it only happens to other people), but then I try to find out why they don't think copyright protection is enough. Someone still can't legally steal your code without patent protection, because it'll be protected by copyright and trade secret protections. Even if they didn't copy your code, but they looked at it prior to implementing their own version, that would violate trade secret protections.
In that respect, software is protected the same way that authors and musicians are protected. Authors invent characters, plots, worlds, objects, even words, but they don't get to patent them. And yet they're still protected from theft by copyright protections; you also can't just go and make a movie out of someone else's book without permission, though you can certainly make one that's similar. If it's good enough for authors and musicians, why isn't that good enough for software developers?
So to sum that up: software development involves a creative act that deserves protection, but that's different than saying that the creative act deserves patent protection, which legally enjoins anyone else from independently developing the same thing, and which gives person A the legal right to take away the work that person B has done completely independently (or at least take away any money they've made from it and prevent them from selling it in the future). To justify taking away someone's work like that, you have to either be sure that the work is a copy or derivation of the original, which is almost never the case with software patent lawsuits, or you have to argue that even though it's unfair to deprive people of their work like that, that the benefits of the overall system are positive to society. That's an easier argument to make if 1% of patent lawsuits deprive people of the product of their independent work, but it's a pretty hard argument to make when 99% of them do.
akeefer. I find it arrogant when someone assumes that disagreement means that the other person just don't understand. Ok. That aside. Let me go back to the actual issues here as I see them.
You seem to be arguing that writing software is basically a creative process which is the same as producing literature and music but software is fundamentally different in that it goes beyond aesthetics. Software is not normally used to produce an expression / statement about life / culture or someone's emotional state etc but is used to process data in such a way as to have a functional and measureable impact.
Here's a question for you. Your competitor has patented a "solution" which basically the same as yours and is now sueing you for infringement how would copyright and / or trade secrets help?"?
Here's another question. Why is a software patent special? As opposed to one based on expression of a solution to a problem in terms of, say, electronic circuitry?
Let's say that your wish is granted and software patents are made illegally but hardware patents are still legal how would we stop companies like Apple and HTC "gaming" the system by tying the software to physical devices so that they become hardware patents?
I'm not sure I have all the answers but making software patents a special case just feels wrong and is likely to have so many legal loopholes as to be worthless ?
The patent system as currently practiced is broken. That much is clear. It was supposed to be about promoting innovation and the spread of knowledge. Instead it seems to really be about granting monopolies. But until the law is changed companies have to apply for patents if only to protect themselves against attack.
We need fundamental changes to the patent system which applies to ALL patents.
It's possible that we need reform for other types of patents as well. I don't know enough about patent abuses in other fields to say. But in software at least, it seems like the system is clearly broken. Invalidating all software patents would be a drastic step, but it also might be the cleanest and most direct way out of the current morass. Of course, many companies would try to redefine their software patents as some other type of patent, perhaps by linking them to the hardware, as you suggested. There would need to be some legal jousting until precedents had been set to determine the outlines of how the law would be applied. That's what the courts are for. However, it seems quite likely that the resulting system would be less biased against innovation, more transparent, and less wasteful than the current system.
I apologize if I came off as arrogant; this particular issue gets my hackles up a bit, and it frustrates me when I hear engineers espouse a dogma that I feel like isn't in their best interest. I think pretty much any engineer who's been affected by patents has been affected negatively by them; there are very few engineers with direct positive experiences where "thankfully I had a patent, or else someone would have stolen my work," and many more "someone else is trying to profit from my independent work" stories. (The positive experiences around having patents usually relate to being able to use them to defend yourself). But I realize I was uncharitable there, and that you have a reasonable basis for your beliefs; my apologies.
As to your first question, in a world without software patents, that wouldn't happen exactly as you describe it. What copyright and trade secrets protect you against is outright theft; that's actually a large part of what patents are supposed to protect you against (i.e. you invent something and I just copy it). In physical devices, copying is easier than in software, since the number of elements involved is relatively fewer and because things are easily amenable to disassembly, and there are few "implementation details" that are hidden from an initial set of observations. In software, "copying" something these days generally means re-implementing something that has the same effect, but the implementation techniques could be radically different. As a result, in software as it is now, patents don't prevent theft by "copying" the actual implementation, they effectively prevent re-implementation of the same features, even if that implementation is radically different than the original. (Witness pretty much any software lawsuit in the news in the last six months). So again, copyright and trade secret protections protect you against outright theft of your work: someone stealing your code and re-using it without your permission, or stealing your internal documentation about how things work, or even reading your proprietary source and using it to guide a new implementation. They don't prevent someone from "copying" your software by implementing their own program that does the same thing. If someone does that, and they independently (with no help from you) go ahead and rebuild your system, why should you get to profit from that? If you have a pizza place and another pizza place opens next door and copies your menu, you don't get to sue them for patent infringement: you make sure your pizza is better, or your cost base is lower, and you compete on the merits. That's how pretty much every other business on the planet works: if someone comes out with a similar product, that's life, and it's your job to be better. Imagine how ineffective our markets would be if that weren't the case.
Secondly, software patents are "special" because patents in general are special: they're a constitutionally mandated pragmatic tradeoff that grants people temporary monopoly rights in exchange for the greater public good. (Note that in Europe patent rights accrue from a theory of "natural rights" effectively, but in the US it's 100% pragmatic in base). So if, pragmatically, software patents do more harm than good, they shouldn't be there, end of story. The benefits of patents are supposed to be two-fold: to give people an incentive to create things, and to give them an incentive to disclose their creations without fear of copying. The latter point is more or less totally moot with software: lawyers advise their clients not to research patents for fear of knowingly infringing something, and on top of that the patents themselves are incomprehensible. So that benefit is basically a 0 with software patents, with perhaps a 0.001% exception for significant algorithmic patents around compression or cryptography. The incentive to create benefit is also pretty difficult to justify; lots of small software development shops have exactly 0 patents, outright theft is prevented by copyright and trade secret protections, and these days most companies use patents entirely to avoid being sued themselves or in an anti-competitive fashion. I believe it would be tough to make the argument that less innovation would happen without patents, given the huge number of open source and independent developer projects that are threatened by patents. So software patents are "special" because they fail the pragmatic test: the ROI on them is intensely negative, patents (in the US at least) are only supposed to exist as a way to benefit society, therefor software patents shouldn't exist.
Again, there already are special cases, in that things like book plots or fashion designs aren't patentable; it's up to the legislature and the courts to draw the line on patentability, and they've chosen to say that mathemetic formulas aren't patentable, plot devices aren't patentable (but people try), but that genomes are (which is intensely controversial and the line is fuzzy), as are hardware devices, pharmaceuticals, and now (as of the last 15 years) business methods and software. The line gets drawn and re-drawn all the time. Why not draw it in a way that accrues the most benefit to the public? That's the constitutionally-mandated reason for there being a line at all.
So I don't disagree about general patent reform, but I do disagree that software isn't a special case: it is (along with business method patents) because it's an area where patents are doing the most harm, have almost no benefit to outweigh that harm, and where independent invention is the rule rather than the exception.
Of all the supreme court decisions, I wouldn't expect this to be drawn mostly on partisan lines. Yet the author makes a good case that the liberal judges would invalidate the patents and conservative judges (with Scalia an open question) would not. Why are conservative judges more likely to support software patents?
'You really can't judge judges unless you know the materials that they're working with. You can't say, "Oh, this is a good decision and this was a good Court," simply because you like the result. It seems to you that the person, who deserved to win, won. That's not the business judges are in.
We don't sit here to make the law, to decide who ought to win. We decide who wins under the law that the people have adopted. And very often, if you're a good judge, you don't really like the result you're reaching. You would rather that the other side had won, and it seems to you a foolish law.
But in this job -- it's garbage in, garbage out. If it's a foolish law, you are bound by oath to produce a foolish result because it's not your job to decide what is foolish and what isn't. It's the job of the people across the street.
So don't judge judges unless you really take the trouble to read the opinion and see what provisions of law were at issue and what they were trying to reconcile and whether they did an honest job of reconciling them, and if interpreting the words of the law in a fair fashion. That's what counts. Unless that's what you want your judges to do, you have a judiciary that's not worth much. You have a judiciary that is just making the law instead of being faithful to what the people have decided.'
I know this is a broad generalization but typically a conservative judge goes for strict interpretation and a liberal judge goes for desired outcome.
They'll tend to see them as protecting the interests of business, which has, for whatever reason, become part and parcel of supporting the "free market" in contemporary American political culture.
future prediction: the right will claim that it would hurt small businesses, as far from opposite this statement is. What they mean to say is it would hurt the profitable businesses that have lobbyists and fund their campaigns
I find this argument unconvincing: Second, writing software is an individual, expressive activity at least as much as it is an engineering discipline.
The implicit argument is that creating software is inherently more creative than, say, creating a mechanical device. Yes, I take enjoyment in crafting my code so that its model is no more complex than it has to be, and in refactoring the code so that it is as clear as aesthetically pleasing as possible. But I imagine that people who design physical items feel the same way about their work.
Please note that I am not disagreeing with conclusions - I have said nothing about his conclusions. But I think the overall argument is stronger without this one. With it, it feels like he started with a conclusion, and used whatever arguments lead to that conclusion.
Actually, you can sort of formalize the argument: Software is eligible for copyright. Therefore, the law already recognizes that it is an expressive activity.
A mechanical device is already not eligible for copyright.
Software is the only thing I know covered by both patents and copyright. Sometimes people deny this to me when I say this online, but I haven't yet heard anybody come up with a concrete example that stood up to scrutiny. Is it really so stunning that two systems never designed to mesh, patents and copyright, turn out to in fact not mesh and produce a big mess? Is it really so horrible that software be only copyrightable and not patentable? Very few people are arguing that software should not be covered by any sort of IP protection, and I suspect the non-zero set of such people would be further shrunk if patents were removed from the equation. (Though I also guarantee, not eliminated.)
Regarding my initial point, I think software falls under copyright solely because its written - I don't know if that's the argument now, but I imagine that was at least the initial reason for granting copyrights. Personally, I can find no meaningful difference between designing software and designing a mechanical device. For that reason, I don't like that argument.
Your main point is interesting, but I'm not sure if I can completely go along with it. Consider, say, a mechanical latch. The design schematics for it fall under copyright. The latch itself falls under patent. The process for making the latch is to look at its design, and change your tools around to produce something of that design. Looking at it this way, I can see how software could be considered its own design schematic - yes, I'm aware that external documentation exists, so it's not a perfect analogy. But with software, there's no separation between "thing used to describe what should happen" and "thing that happens."
I want to agree with your argument because it would provide a clean solution to the problem, but I don't think I can. Rather, I think the solution to the problem may require a results-oriented approach. That is, it may require us (as a society) to say, "The current patent scheme regarding software is harming innovation. We are going to change how patents apply to software to avoid this harm."
"Regarding my initial point, I think software falls under copyright solely because its written"
No. That's a degree of misconception that I can't fix in an HN post. Copyright has little to nothing to do with the medium in which an expression is fixed. And with all due respect, the rest of your post is so muddled w.r.t. what copyrights really are that it's hard to even address what's there. (I truly mean "with all due respect", but I also truly mean that it is very muddled.) You really ought to spend some more time studying the topic, including such basics as what exactly copyrights are and what, exactly, they cover, and why.
What I meant was, "it's fixed somehow". I assume the original reasoning for why code is copyrightable is that when I write, say, a book, that is copyrightable. Code is written down just like a book is, so it follows that copyright will apply. I'm not saying that's the legal reasoning. I'm saying that was probably the initial gut-reaction to why copyright should apply to code, and the legal reasoning came afterwards.
I have spent time with the various forms of IP, and I feel I have a pretty good grasp of what copyright is. I can't correct any misconceptions unless you point them out - although I have a feeling it's more that I did a poor job of expressing myself.
Attempt the second: with non-software inventions, you can have a copyright on the documents that explain how to build the invention. You can have a patent on the invention itself. Software can be both copyrighted and patented. You object to this because it's the only instance we have of something that can be both copyrighted and patented - it's a unique exception. I responded to this objection by pointing out that software is also unique in that what you use to describe exactly how to make the invention is the invention itself.
I'm not so sure this isn't a constitutional question.
In Article I, section 8, the U.S. Constitution:
Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Note that Congress is only given this power in order to promote the progress of science and useful arts. If one can effectively argue that software patents have the opposite effect, and in fact hinder the progress of science and useful arts - and I think such an argument can be made - then it seems reasonable that the courts should strike down software patents as unconstitutional.
Unfortunately, Eldred v. Ashcroft indicates otherwise. There wasn't even a pretense that retroactively extending copyright length would promote the progress of anything, but the Supreme Court ruled that Congress can do pretty much anything other than making terms literally infinite.
The Supreme Court does not evaluate the intention of a law. Remember, the very process of judicial review was introduced after the Constitution was written, so the parts of the Constitution where it explains why it is written the way it is are rather clearly not policies.
That said, Title 35 of the United States Code states:
>Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
It is difficult to see how software patents could really fall under this. I don't know of any software patent describing a "process" which is not simply a mathematical algorithm (unpatentable), and they certainly don't describe a machine, manufacture, or composition of matter.
The patent described in Diamond v. Diehr is really not at all what we would today consider a software patent; it's not really similar to the patents on, say, wavelet compression in any sense beyond "there's silicon involved". It was a process of molding synthetic rubber, not pushing bits around.
Any process is arguably a mathematical algorithm. The process by which I sanitize water can be expressed as a mathematical algorithm, where the various components play the role of various mathematical constructs.
And therein lies the problem. If you read SW patents they're usually pitched as processes over a computer device. This makes it hard to untangle from any other process that acts over some matter.
With that said maybe we get rid of processes altogether. I'd say get rid of everything except drug patents. But that would require congress to sign off.
>If you read SW patents they're usually pitched as processes over a computer device.
The problem is that a computer is itself a mathematical construct. If the patents really wanted to describe a process on a device, they could not use as their "device" a Turing machine, because that is not a physical device in the sense of water sanitization. Whereas water sanitization requires the physical presence of water, a program can exist totally in theory as some bits in Wolfram's 2-state-3-symbol.
That is, unless you believe the mathematical universe hypothesis, but I don't think the Court's job is to decide whether the Universe exists!
I am also not a lawyer, nor formally educated in the field of law. I do know a bit about theoretical CS, though.
Computers aren't mathematical constructs. They're simply devices, like a water bottle. But what they can compute, at least as best we understand it, is bound by what is computable by mathematical constructs, such as the lambda calculus.
But with things such as DNA computers and nanotechnology, could one argue that the universe is a computer? Can everything just be described as a construction of objects in the real world with stimuli applied to it?
To me it just feels like a really slippery slope. Just say "medical drugs" and leave it at that.
A particular computer is not a mathematical construct. The concept of a computer, however, is a mathematical construct; there are no physical characteristics necessary to identify something as a "computer" for the purposes of e.g. arithmetic coding. I could perform arithmetic coding with nothing but a pen and an extremely large amount of paper.
I could perform arithmetic coding with nothing but a pen and an extremely large amount of paper.
BUT a pen and paper. A patent wouldn't be just the algorithm, but also a writing device and paper.
Everything is a theoretical until you do it in practice. You can't patent a cool 3D rendering algorithm. But you can patent a device that uses it and renders the output to a computer screen. This is how patents are written.
> A patent wouldn't be just the algorithm, but also a writing device and paper.
Well, yes, and if the patent says "a writing device and paper" it might be valid, because paper is a specific construct, and the patent obviously does not cover such things as e.g. a piece of cloth.
Why do you use bzip2 and not bzip? Well, because arithmetic coding is covered by a supposedly valid patent. However, bzip can be executed by hand, or on any multitude of devices satisfying the requirements for Turing-completeness. The idea that a patent should preclude the writing of bzip, a purely mathematical construct, is absurd. bzip runs on an abstract device.
You could, for instance, specify a specific processor in the patent, but this is not done. You could not, however, specify a processor architecture, because this is also a mathematical construct, which can be carried out on paper.
Let me give you an example: My uncle knows that a cell phone is a computer. How? Well, I told him, and I'm a researcher. How do I know? Well, originally, some professor told me, and he's a professor. How does he know? Well, he or his colleague studied the literature indicating that an ARM processor is Turing-complete... which, at the end of the day, is a totally mathematical consideration, independent of the physical world except perhaps the brains which analyze it.
>But you can patent a device that uses it and renders the output to a computer screen.
No, because each independent part of this is some prior art. The representation of data on silicon is long since public domain, the display of silicon data on a screen is long since public domain, the x86 architecture and the GPU architecture are mathematical, and the algorithm itself is mathematical, and the combination of these is not itself novel or interesting: it is not even performed except by the end user, who must merely double-click a game icon and shuffle some bits around with a mouse.
Let me give you an example: My uncle knows that a cell phone is a computer. How? Well, I told him, and I'm a researcher. How do I know? Well, originally, some professor told me, and he's a professor. How does he know? Well, he or his colleague studied the literature indicating that an ARM processor is Turing-complete... which, at the end of the day, is a totally mathematical consideration, independent of the physical world except perhaps the brains which analyze it.
Actually I don't think its technically "Turing Complete". it doesn't have unbounded tape. In fact any given ARM processor will have a fixed addressable limit. I can certainly compute a class of things in theory that the ARM processor can't compute. There are real HW considerations that you need make when you deal with an actual physical processor that don't exist in the theoretical model.
And this sidesteps questions of complexity.
But this is similar to a patent on a new wing design. You can say it is simply a mathematical model of airflow and such. But the pudding is the creation, not the mathematical model of the wing.
>Actually I don't think its technically "Turing Complete". it doesn't have unbounded tape. In fact any given ARM processor will have a fixed addressable limit. I can certainly compute a class of things in theory that the ARM processor can't compute. There are real HW considerations that you need make when you deal with an actual physical processor that don't exist in the theoretical model.
Obviously -- it is a finite state machine, but this doesn't mean any less that it is a theoretical model.
>But this is similar to a patent on a new wing design. You can say it is simply a mathematical model of airflow and such. But the pudding is the creation, not the mathematical model of the wing.
No -- the wing is a physical object. I can hold a wing in my hand. Conversely, a patent on a wing design does not mean that I cannot use that wing design in a computer simulation of an airfoil. But a patent on bzip does mean, supposedly, that I cannot run bzip on a virtual machine. In other words, the wing design is the point, here: you could patent a specific device for running bzip, but you cannot patent bzip on all computing devices. Which, I suppose, might help to explain my point.
They're not making a Constitutional argument here, but suggesting that the courts fix some decades-old precedent that went astray starting with Diamond v. Diehr.
That's well within the Court's powers. They created the mess, so it's not unreasonable for them to fix it. It's not as though Congress passed a law allowing software patents or something.
That's a good summary. I admit that putting a "start" on this mess is a bit difficult, because things happened one step at a time.
I think the problem, though, is in how 35 USC 101 (patentable subject matter) got unhinged from 102 & 103 (novelty / non-obviousness). So you could meet the novelty requirements with something that wasn't patentable subject matter at all.
Once the lawyers could pry them apart like that, they could pass 101's requirements by saying the software is running on a computer and pass 102 & 103 requirements by saying that the software is new, even if the hardware in the patent is a normal PC. If they reversed that old decision and said that you can only pass 102 & 103 with something that is patentable subject matter, the scheme would fall apart.
You will note that this is, in effect, exactly what the decision to treat the stuff that isn't patentable subject matter as part of the prior art accomplishes and that Parker v. Flook does precisely that. Meanwhile, with Diamond v. Diehr, they got considered separately and ultimately separated.
The Supreme Court's rule against software patents was a matter of statutory interpretation, not constitutional law. And software patents were created by a lower court (the Federal Circuit) in the first place, so it would be perfectly appropriate for a higher court to reverse their error.
I'd love to see Congress fix the problem, but there'd be nothing improper about the courts doing it.
>Software patents are ... not a constitutional question
A constitutional argument could be made that software is not covered by the term "useful Arts". In fact, Justice Scalia suggested that the business-method patent in Bilksi might be invalidated on this ground during oral arguments:
> JUSTICE SCALIA: Well, if the government says that the -- that the term on which it hangs its hat is the term "useful arts" and that that meant, originally, and still means manufacturing arts, arts dealing with workmen, with -- you know, inventors, like Lorenzo Jones, not -- not somebody who writes a book on how to win friends and influence people. What is wrong with [the] analysis, that ..."useful arts" ... always was thought to deal with machines and inventions?
Congress would appear incapable of any policy to the detriment of the few large software companies that benefit from the existence of software patents. This seems more of a domain for the FTC and Justice Department, due to the implications for anti-competitive behavior facilitated by these types of patents.
As much as I'd like it to be true, I can't help but find this line of reasoning a bit specious. As Simon Peyton-Jones is fond of pointing out with regards to Haskell's functional purity, a program that is just pure math won't do anything except make your computer heat up. Math doesn't write files, it doesn't draw on a screen, it doesn't send packets across a network.
A program is pure math - the fact that a computer takes certain actions on the basis of the math doesn't change that. In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet. Like novels, programs should be copywritable but not patentable.
By that rationale, any physical object that is produced by a specified process is pure math. Ergo, no patents for physical products either. That might be your position, can you clarify?
How could a physical object be pure math? Even if you could completely mathematically specify the process of creating the object, that only means you couldn't patent the specification itself - the object would still be patentable.
"In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet."
Surely you realize that all possible patents are implied by the alphabet in precisely the same manner that all possible novels are implied by the existence of the alphabet...? :)
There seems to be some confusion here between the thing that is being patented and the description of the thing that is being patented. The fact that the description is written using the alphabet has no bearing on the patentability of the thing itself. No arrangement of letters in the alphabet can be patented - but that doesn't mean that nothing can be patented.
A program is a tangible, physical arrangement of electrons, atoms, and/or electromagnetic fields. Just because it is easily rearranged and difficult to perceive with the naked eye does not make it mathematical or virtual or unreal.
In a sense, all possible computer programs for a given architecture are implied in that architecture, ...
All possible medicines are implied by the rules of chemistry obeyed by a liter of pond scum. Determining which potential medicine does what is a patentable invention.
A program is a tangible, physical arrangement of electrons
One could likewise argue that math is a tangible physical arrangement of pencil marks on a page or of neurons in the brain. But the point remains that math is not patentable.
Should someone be able to patent a prime number? Discovering a new large prime number requires effort, skill, lots of compute cycles, etc., but it's not patentable. Discovering an algorithm that has novel properties also requires effort and skill, but it shouldn't be patentable either, because it's math.
All possible medicines are implied by the rules of chemistry
Maybe eventually we'll understand the rules of chemistry and human biology as well as we understand the rules of math, but until that happens the case of medicine is not really comparable to the case of software.
> A program is a tangible, physical arrangement of electrons, atoms, and/or electromagnetic fields.
A tangible program is not what's being patented, only the concept of the program, which is not tangible. Concepts are patented, not code. Code gets copyright protection.
Similar to saying, "Hey! I thought of a cure for cancer. I didn't actually come up with a specific one, only the concept of one. If you actually come up with it, it's my property and I'll sue you if you don't recognize that.
This means that there are trivial concepts out there, that if I implement in software, I owe bank to some company. It's pretty fucked up when you think about it.
No, a computer does that. You can patent a computer, you just can't patent the software it runs. Just as you can patent a CD player but you can't patent the music it plays.
I was sort of surprised at that logic. Aren't mathematical algorithms sort of different than software, especially in the context of what people are patenting? Like take the Angry Birds suit - the patent in question covers something about the way new level purchased, right? There is no one specific algorithm associated with that idea. Obviously, one needs to be implemented to get something working, but that's not what the patent is on. If you want to work on the theoretical level of "software is math", then aren't the patents in question on _classes_ of software, or on the effects of software, more than on the software itself?
The bottom line: Supreme Court will never invalidate software patent.
Image this if Supreme Court does invalidate software patent.
A big sticker will be on the US map and shows, “Welcome to take all software inventions you want. All my software inventions are yours. Oh. BTW, yours in your country are still yours!” You see how this affects global competitions in software and finance industries.
However, the current patent system still has room for improvements.
1. Software innovation changes too fast. The patent length should cut to 5 years (excluding the waiting time to get the patent). I have discussed this previously, http://news.ycombinator.com/item?id=2409917
2. Patent non-practicing entities (excluding public research institutions and schools) should be banned to sue anyone. However, even so Patent Trolls still know how to get around this. This just increases difficulty, but definitely won’t stop them.
3. Claim description has many ways to interpret. This is where the money is spent in litigation. If a standard structure and a list of words are allowed to be used in the software claim description, this probably makes easier and faster to find out if a software patent is valid. But I have to admit this is a hard problem to solve.
Big companies are interested in getting rid of patent trolls, because the defense against trolls is asymmetric. They would like a system that allows them to attack or defend against other large companies, while they remain immune from trolls, such as Intellectual Ventures and its off-springs, like LodSys. One solution would be a 2 year expiration on software patents. Another idea would be to demonstrate "substantial" sales for renewals.
That's the whole point of the article: the SCOTUS members don't have to be re-elected and are not going to be lobbyists after leaving the bench - they actually can do such a thing on principle, that's their whole role. Please read the article.
However, that's not their job. The supreme Court's job is to make a decision based on the laws set on the books. They can't say, "Well, this version of the law would be better, so we'll go with that, but rather "Thus is what he law says".
We need to educate Congress. Better yet, we need educated people in Congress.
I would argue that that is in practice their job, especially given the amount of ambiguity, both unavoidable and superfluous, in the legislation-as-written. I actually have a very strong dislike for Scalia because I think that his legal 'originalist' philosophy is pretty much like biblical 'literalism' - it's an interpretation that is (a) convenient to him and (b) denies the validity of all other interpretations in an underhanded way.
I find originalism to be the only reasonable way to interpret the document. If the constitution doesn't say what you want it to say, then change it. Once you start changing the meaning of the words you defeat the purpose of having a written constitution.
Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact. Adapting to the now is what I think is the "only reasonable way" to come at the document - and has the advantage of admitting that it's an interpretation, instead of attempting to sneakily de-legitimatize all other interpretations.
But you go ahead and ask James Madison what he thinks about LulzSec.
>Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact.
Yes, and so what? There's a huge gulf between legislation, which is meant to be crafted for the needs of the day and can be easily modified, and a constitution, which is a blueprint for how the government functions. Human nature hasn't changed in the last 300 years. Not one bit.
>Adapting to the now is what I think is the "only reasonable way" to come at the document - and has the advantage of admitting that it's an interpretation, instead of attempting to sneakily de-legitimatize all other interpretations.
The other interpretations are illegitimate - there's nothing sneaky about it. They're nothing more than cruft added by people who didn't have the votes to actually change the document. "Adapting to the now" is precisely the purpose of legislation and also the reason the constitution places boundaries on that legislation.
Don't look now, but language, culture, and technology all change. Change right out from under the most carefully-written of legislation, in fact.
In some cases, perhaps. But where copyright, patents, or trademarks are concerned, the US Constitution is quite clear what their effect must be: congress may pass & enforce these laws "to promote the Progress of Science and useful Arts", and nothing more. In my opinion, the succinctness and simplicity of the Copyright Clause is almost timeless.
Read Bilski people. Overall it was 5-4, but if you read the majority and the dissent, it was 9-0 on this sub-point: that State Street (not a Supreme Court decision) is bad precedent, and Benson, Flook and Diehr are good precedent.
Diehr is only muddied because people choose to muddy it. I'm working on an essay that details this now.
The SCOTUS ruled against the patentability of an algorithm which codified a certain hedging strategy in the Bilski case in 2010. This was believed to reinforce the invalidity of many software patents.
That as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously. - Benjamin Franklin
I think that it will be very difficult to have serious patent reform for the software industry without having significant effects on other industries. So while it seems like the software industry is generally behind getting rid of patents, the changes will be very difficult to isolate to software and companies outside the field will likely oppose any significant changes. FWIW, I hope they make significant changes for software patents soon.
Excluding the patent extortion industry, any industry who believes it's hard to define a software patent. "I know one when I see it" might not cut it and there might be some nasty edge cases where an algorithm controls a physical process.
I would imagine it would be anyone, or industry, who has a significant patent portfolio who worries that invalidating software patents would weaken their patent position.
Yes so there are likely some software companies that might have issues (depending on what the changes looked like) such as Microsoft, Oracle, IBM (not sure if these companies would object or not, just citing companies with large portfolios). Some non-software companies like pharmaceuticals almost certainly would oppose changes that would affect their ability to exercise their patents.
Edit: A better example might be a company like Intel that has a lot of hardware patents. It is potentially difficult to change the patent laws to prohibit software patents without affecting hardware patents.
In India we don't have the concept of software patents, unless some sort of hardware is involved. I am guessing that this is way better than the system where all business methods are patentable. This kills innovation. We should all just petition for change.
>Only if this fact becomes common knowledge, in the way that everyone knows doctors hate malpractice lawsuits, will we have any hope of the Supreme Court—and specifically Justice Scalia—doing the right thing.
Yet we still seems to have malpractice lawsuits all the time.
A simpler solution would involve giving the defendant of patent litigation the option of making their suit winner takes all.(All of the court fees within reason are paid by the loser) This would keep software patents but reduce frivolous lawsuits.
And make it impossible for the little guy to, for example, sue Microsoft due to the potential huge legal fees.
The issue here is that patents are being used for extortion, and none of these cases ever end up going to court.
Maybe what would fix this would be to not allow private entities to pursue patent infringement cases with their own lawyers. Create a Bureau of patent infringement.
Make it so that when a patent is infringed, you file a claim with the Bureau, and they asses validity of patent and assign damages. No litigation, no settlement, no patent lawyers involved.
Perhaps we can defeat bureaucratic inefficiency with more bureaucratic inefficiency.
How would that change make it any more difficult for a little guy to sue a big corporation? I think you have missed the part of within reason, Microsoft wouldn't be able to put an individual on the hook for all of their court fees just those that a judge deems valid to pay for the suit. This change would make the patent holder vet the validity of their patent before they can automatically sue, which is the goal we are looking for. A defendant would only exercise the option if they believed the claim to be frivolous for fear of losing in court. For legitimate cases the parties either go to court or settle.
Consider a mechanical timer in a washing machine. A timer that produces a novel washing cycle is certainly patentable.
Consider a chain of electromechanical relays that produces the same cycle. Clearly it is just as patentable, and could be covered by a well-written version of the preceding patent.
Consider the transistorized version of the preceding, with the relays replaced by transistors. Patentability: ditto.
Consider a mask-programmed processor that produces the same cycle. (Mask-programmed means the program is hardwired into a metal pattern.) Patentability: ditto.
Consider a flash-programmed version of the preceding that produces the same cycle. Patentability: ditto.
Consider a volatile memory version of the preceding that produces the same cycle. Patentability: ditto.
Why does this matter? Because in the coming age of nanomachines, "software" will frequently be embodied in custom mechanical machines, chemical reactions, interference patterns of light, and so forth. If software is unpatentable, then neither can you patent the special sauce that turns dirt into nanomachines.
Your contrived chain of analogies ends in a total strawman. I think you intended the last item on your list to be pure software, but it's not. It's just an electronic version of the first item.
No one is arguing that a complete electronic timer should not be patentable. The argument is whether the software alone should be patentable.
The software by itself is NOT a timer. The timer's software is only the idea of the timer; it is the instructions, the observation of which allow the physical timer to function. There must still be a physical timer -- an assembly of physical parts that follows programmed instructions to provide a function. That entire assembly is what should be patented.
The bare idea of the timer -- the steps that the timer takes while it's working, should not be patentable. That's what the article is proposing. Nowhere in your analogies is bare software addressed.
I think you intended the last item on your list to be pure software, but it's not.
You have hit the crux of the discussion. I am defining software as a tangible thing, existing as a pattern of matter and fields. It is not abstract, virtual, or ineffable. What you are talking about ("pure software") are ideas about the software's principles of operation. The mathematical and logical ideas by which we understand a process are not patentable, but their tangible embodiment (software) is patentable.
Consider an example of the difference. Prime numbers are abstract ideas that can be used to create difficult-to-solve problems, and thereby used for cryptography. As abstract ideas, they are not patentable. Someone could embody those ideas in a logic machine (like the RSA algorithm) and patent that. But somebody else could embody those ideas in an analog laser interferometer and patent that, without conflict with the other patent.
No one is arguing that a complete electronic timer should not be patentable.
And that is exactly what is covered by a valid software patent. Such patents claim something like "Claim 1: A stored-program logic machine, configured to provide the process described in claim 2." The configuration of the logic machine is the software.
A well-written patent will cover all variations of the software that are "obvious" to "a person skilled in the art". This generality is why all patents are so painful to evade, not just software patents.
> "I am defining software as a tangible thing, existing as a pattern of matter and fields."
Ok, but that means you're not talking about software patents any more. The U.S. patent office currently cares nothing about patterns of matter and fields.
> "And that [a complete physical timer] is exactly what is covered by a valid software patent."
No, wrong. That's how it should be, but it's not, and that's the problem. Officially, patent law isn't supposed to allow patents on "abstract ideas", but due to incomplete guidance from the courts, the requirements have been diluted to nothing. Right now in the U.S., a software patent application can satisfy the requirements by specifying any trivial physical step. Most software patents specify only a "computing device" on which the software is used. Well gee whiz, guess what that covers? You got it, everything! It's useless language; there's no narrowing, no added specificity. It would be just as usefull to specify "software in Her Majesty the Queen's service". As a result, for the past 20 years the USPTO has essentially been granting patents on pure software.
A patent on a laser interferometer that encodes instructions is no longer a software patent; that would be covered by a mechanical patent. And this patent certainly would be in conflict with any software patents that covered the software encoded thereby, if the interferometer were ever put to use in a product.
The U.S. patent office currently cares nothing about patterns of matter and fields.
Right now in the U.S., a software patent application can satisfy the requirements by specifying any trivial physical step. Most software patents specify only a "computing device" on which the software is used.
So which is it? Physical embodiment = not abstract.
A patent on a laser interferometer that encodes instructions is no longer a software patent; ...
I was talking about interference machines that use the wave properties of light to do computation without the use of digital logic. With these machines, abstract mathematical approaches are reduced to practice by means other than software. The software patent does not somehow magically fence off an area of abstract thought. What it fences off is a particularly convenient and valuable area of concrete machinery.
> "So which is it? Physical embodiment = not abstract."
No, the point is that there effectively is no "physical embodiment" requirement. Adding magic words like "computing device" or "system and method" to a patent application has no real effect, because ALL software is run on a "computing device" or a "system". This does nothing to narrow the scope of a patent, or to tie it to any distinct physical implementation. The ONLY distinct entity in such a patent is the algorithm.
This will become immediately clear to you if you read any number of software or business method patents. You seem to have created your own alternate reality here, where software patents are necessarily like mechanical patents. They are not.
> "I was talking about interference machines that use the wave properties of light to do computation without the use of digital logic."
Fine, whatever. Any patent that covers your thingamajig in its physical manifestation will have to be a proper mechanical patent, complete with design drawings. As a separate matter, the computation performed by the machine can be expressed algorithmically, and that algorithm is what could be covered by a software patent, completely apart from whatever machine implements it. That patent can then be asserted against any other use of that algorithm regardless of the physical system that uses it.
> "The software patent does not somehow magically fence off an area of abstract thought. What it fences off is a particularly convenient and valuable area of concrete machinery."
No, again, that would be a mechanical patent. Have you really not ever read a software patent? Go look one up; maybe start with one of the patents on LZW, or maybe amazon's 1-click patent.
This argument is simply wrong. You could use the same type of "progression" to get, at the root, basic theoretical physics or pure math. Yet, ideas and concept from these two fields are not patentable.
But his examples are all physical embodiments that perform a tangible real-world function. There's no continuous progression between those and pure math.
This is a simple minded piece. It is so riddled with half digested bs I don't even know where to start with it. I guess I'll just pick on something so blindingly obvious that anyone with more than one braincell (which apparently does not include the author) would already find beyond question.
Copyright protects the expression of an idea. This is an absolutely excellent form of protection when the expression of the idea is a huge part of its value. A piece of music, or a novel IS its expression. If you rewrite James Joyce's Ulysses in your own words you have lost Joyce's expression which is precisely what people value in the reading. Hence a work in which the expression is critical to its value is well protected by copyright.
Software is not such a work. If someone spends years refining an invention and someone else reverse engineers it and yet changes the expression of the work copyright is no protection whatsoever because no-one using the work gives a rat's ass about the underlying expression.
The idea that copyright is a meaningful protection for software is so laughable that anyone daft enough to take the idea seriously is clearly so appallingly badly informed that they don't deserve to be taken seriously.
What if I was the first person to write a murder mystery in which the butler did it? Could I patent that plot device so no one else could use it?
The point of copywriting code is not because people care so much about great coding style or variable names - it's to prevent the laziest forms of copying. If someone wants to invest the time and effort to reverse-engineer and rewrite a piece of software without copying any of the original code, the cost of doing so is sufficiently prohibitive that it might be easier just to rewrite it from scratch.
Clearly anyone who is willing to release software under the GPL does not agree with you about the meaninglessness of copyright protection for software. You would be amazed how many smart, and well-educated people have taken that copyright license, and others like it, seriously.
I'll preempt the constitutional argument by saying that hasn't been made yet. You underestimate how strong such an argument has to be to succeed. What SCOTUS could clarify is Diamond v. Diehr. That still wouldn't be the end of our patent problems though.