This drives me nuts.
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| Author | Content |
|---|---|
| JaseP Feb 15, 2011 11:24 AM EDT |
I'm a lawyer, though not by trade, and not a member of the patent bar. But I've taken "IP" law courses in law school (~18 yrs ago) & as continuing ed. courses for active law license requirements. This stuff just gets under my skin. We were always taught (back in the day) that you can't patent things found in nature or mathematical formulas. Still, you see patents on human genes & on these codecs. Human genes?!?! Come on! Codecs?!?! They are nothing OTHER than mathematical formulas. I mean, even if you are successful in arguing the patent-ability of devices like TomTom or Garmin navigators (machine or transformation test... ), how does a Codec, which is essentially a mathematical formula plug-in for a video viewing app, even APPROACH patent-ability. It boggles the mind. I fear justice & freedom are truly dead. I hope I'm wrong about that. |
| dinotrac Feb 15, 2011 11:40 AM EDT |
@JaseP -- I'm also a lawyer (not practicing) who took a good dollop of IP law in law school and have kept up. Two things -- I'm sure you know that the Supreme Court has spent a little time looking at the patentability issue, and has had some unkind words for past practices at the USPTO. Many of the patents out there would not pass scrutiny under the most recent standards. But -- there is logically no reason why software should be any less patentable than hardware. The question in my mind is "What, exactly, are you patenting?" and that's where stories like this get my goat. The whole idea of "necessary patents" borders on the absurd, especially when it comes to software. If you can't patent the underlying math (and, in a properly conducted USPTO, you can't), then you are limited to the implentation -- or, more accurately, those creative aspects of the implementation that are not dictated by the math -- and there is very little in software that cannot be done in some other way, even if that other way is not always optimal. |
| JaseP Feb 15, 2011 12:29 PM EDT |
So, Dinotrac, you're essentially describing a design (aka "style") patent, as opposed to a functional patent,... It's my understanding that they are of limited protection, and basically are no better at protecting rights than copyright or, in certain instances, trademarks. I think I'd have no problem with software patents being considered design patents, but I think the standard should be preponderance of the evidence to overturn them, not clear and convincing evidence, like we are seeing now. I think a ruling like that from SCOTUS would fix their issues with the USPTO lax procedures as well as stymie these ridiculous patent suits. |
| Bob_Robertson Feb 15, 2011 12:42 PM EDT |
Well, I'm not a lawyer, have taken no law classes, and am convinced the entire USTPO should be abandoned as a failed project, and all its documentation released into the public domain period. (yes, I know, it already is, got it) It is beyond my ability to suspend disbelief that enabling "patent trolls" who produce nothing but live at the expense of others who do produce, has anything to do with innovation. And any system that actively encourages such insanity must go. |
| dinotrac Feb 15, 2011 3:36 PM EDT |
JaseP -- Not at all. I am definitely describing a functional patent, no different from one for an improved combustion chamber in a car, or the Morse's telegraph, except that it is implemented in software. |
| gus3 Feb 15, 2011 4:37 PM EDT |
Quoting:it is implemented in software. At that point, it all comes down to: 0+1=1 1+1=2 Those who do not understand Turing and Shannon, are doomed to live forever in the world where the circuits are built with magick. |
| jdixon Feb 15, 2011 4:43 PM EDT |
> ...except that it is implemented in software. Gus3 is right, Dino. All software is mathematics. As much as people might like for it to be so, none of it is supposed to be patentable. |
| gus3 Feb 15, 2011 5:24 PM EDT |
http://www.groklaw.net/article.php?story=20091111151305785 |
| number6x Feb 15, 2011 5:44 PM EDT |
Dino,
Not the perfect analogy but think of copyrights. If Steven King copyrights a novel he wrote in English, he also retains the rights to the Spanish and French versions. The underlying story, regardless of implementation, gets the protection. I think the people here are arguing that the implementations in software are more like translations. The underlying story in programming is always a mathematical expression. Always, no exceptions. I guess we never learned from the GIF patents. |
| tuxchick Feb 15, 2011 6:00 PM EDT |
number6x, but story plots and titles are not protected. There are no new stories, just reworkings of old ones. You can't copy King's work and pass it off as your own, but you can write all the vampire, zombie, and undead cat stories you want. It's a decent analogy to software, I think, because you can imitate endlessly, and even use identical turns of phrase. Patents don't apply. |
| number6x Feb 15, 2011 6:58 PM EDT |
It is pretty shaky ground. I like to think of the old saying: "Invent a better mouse trap, and the world will beat a path to your door." However, today it would be the IP attorneys beating the path in order to serve you with papers. The system seems to interpret the rights way too broadly. In this day and age anyone who has a patent on a specific mouse trap would being suing the pants off all other mouse trap manufacturers. Even those whose designs are radically different. Of course when a research lab sequences the genome of the house cat and patents that genome, they will join in the suit as well. We can't allow cheap copies with a new coat of paint to be considered unique and new, but we also cannot be overly broad in the rights granted. There has to be some sensible middle ground. We just need to make people see it is in there best interest. |
| jezuch Feb 16, 2011 3:23 AM EDT |
Quoting:We were always taught (back in the day) that you can't patent things found in nature or mathematical formulas. Well, The American Way(TM) is that anything that is useful in any way has to be milked for dollars. So it's not really surprising that these ridiculous restrictions on milking usefull stuff for dollars got moved out of the way. /sarcasm /condescending-european-point-of-view |
| jdixon Feb 16, 2011 9:34 AM EDT |
> The American Way(TM) is... The modern, government backed corporate favoritism way, is; yes. That's not in the spirit of the original "American Way", of course. |
| Bob_Robertson Feb 16, 2011 10:32 AM EDT |
JD, I can recommend very highly (emphatically, in fact) the book "Hamilton's Curse" by Tom DiLorenzo. The American Way(TM, reg us pat off) in deed, rather than spirit, "merchantilism" by another name, has been around since the beginning. Living in a merchantilist country is not good, unless one is one of the favored merchants. The corporate/government partnerships go all the way back. |
| JaseP Feb 16, 2011 11:49 AM EDT |
@ Dinotrac, I guess it comes down for me that I see it the way many others here do, despite the "mind #@§*" that is a law school education. To patent functions of a machine that was designed to be a universal transformation device, that is the modern computer, strikes me as absurd, in that all these uses (or at least the vast majority) immediately become obvious. If the law doesn't see it that way, then to use a quote (Charles Dickens, I believe), "the law is an @§§." |
| dinotrac Feb 16, 2011 12:23 PM EDT |
@gus3 and @jdixon -- You say that like it means something. Ultimately, the entire universe comes down to mathematics. Doesn't make inventors any less clever or inventions any less useful. Somebody's got to do the work of figuring that stuff out and society benefits if it gets done. |
| dinotrac Feb 16, 2011 12:26 PM EDT |
tuxchick -- Not exactly true. Boy meets girl, boy loses girl doesn't get protected. Boy meets girl, boy loses girl, boy goes to Indiana, gets a gender change and marries a forward-thinking mule who is also a scientologist might. Copyrights are about creative elements. |
| dinotrac Feb 16, 2011 12:27 PM EDT |
@JaseP - You are welcome to disagree with the state of the law. Personally, I don't think it's that bad. The USPTO is another matter. |
| gus3 Feb 16, 2011 1:06 PM EDT |
Quoting:Ultimately, the entire universe comes down to mathematics.True enough, but... There may be patents for various types of switches, but any legal-only attempts to restrict the occasion or purpose for flipping a switch-- Quoting:Turning the Product to the activated position between the hours of 0400 GMT and 0845 GMT, while connected to a 220-volt circuit, so as to form the word "LINUX" on any side of the Empire State Building facing the Atlantic Ocean, will infringe on Patent 5,675,316,842,973,881, thereby rendering You liable for civil damages.would be laughed out of court, while a sharp rebuke to the USPTO for having beclowned themselves. A type of switch may be patentable. Its configuration and manner of use, cannot be. And it's only a few tiny steps, from "switch" to "digital computer". The state of the law is every bit as bad as JaseP says; it is detached from the reality that people have to live with, every day. Charles Babbage's quip about the English Parliament comes to mind: Quoting:On two occasions I have been asked, – "Pray, Mr. Babbage, if you put into the machine wrong figures, will the right answers come out?"... I am not able rightly to apprehend the kind of confusion of ideas that could provoke such a question.Or, for a more recent example, take a look at the first order from Judge Ilston in SCEA v. Hotz. The disconnect from reality, that allowed that order to be issued in the first place, is appalling. |
| hkwint Feb 16, 2011 1:21 PM EDT |
Quoting:Somebody's got to do the work of figuring that stuff out and society benefits if it gets done. Indeed, it's called "universities" and "publications". In the end, it probably doesn't matter that much if a society pays universities or companies to innovate. However, at this moment I suggest for "society as a whole" it's cheaper to fund universities and require all their 'results' to become part of the public domain. Lots of times, universities are not even needed, and 'curiosity' or 'scratching an itch' is all there's needed for great innovations. Like proving Fermat's last theorem, the most stunning mathematical accomplishment of modern time, and almost no money, patents and business involved. Because real innovative mathematics is wáy ahead of any business in existence today. So, there you have it. It's curiosity (and to a lesser degree: Universities, proud and such) which delivers new mathematics, and it's "patents" / R&D at companies etc. which delivers the most optimal way and parameters of using existent mathematics. As one might now, I'm in the business of the latter, one could see my job as "rearranging data". So of course I feel our hard work to 'optimize parameters' should be valued. Just as a writers job of "rearranging characters" should be valued. Patents was probably meant to provide a reward for "optimizing the configuration of information", but I think it does a very lousy job at doing so, with far too many adverse effects. I mean, why can't you patent the 'reasoning of any lawyer', and then sue any other lawyer who uses the same reasoning? The fact lawyers can't patent their reasoning, doesn't say anything about them not being as innovative as those who optimize h.264. Why is it there's common law - which makes the result of 'hard thinking' of the judges available to anyone with zero cost, and where the result is not patented? Probably, because the whole juridical world would come to a halt and many jobs were lost if all 'thinking', results of contemplations and optimizing arguments were patented. In such a world, it would become impossible for a lawyer to do his / her job at all! And of course, it would be hard to combine 'existing' reasoning to 'new reasoning'. Only lawyers with deep pockets could pay to use existing reasoning and keep doing their job. And most of society couldn't afford lawyers any longer, as it would be 'overpriced' to great extents*. The above is pretty much what happens to software nowadays. Does that mean the whole patent system is bad? I have thought for a long time, until I realized software patents are about the most common patents the USPTO admits nowadays! Most of the top10 patent-farmers are software companies, or hardware companies also claiming software patents. *OK, that's where I run into an iterative problem: If it becomes harder for lawyers to do their job because what they plead is patented, would they start suing each other - even if it's almost impossible to sue another company without infringing patents? |
| bigg Feb 16, 2011 1:26 PM EDT |
> Somebody's got to do the work of figuring that stuff out and society benefits if it gets done. You are not the first to say what I just quoted. Why shouldn't you have to pay someone in order to post it? |
| jdixon Feb 16, 2011 2:43 PM EDT |
> You say that like it means something. Reality is what it is, Dino. That doesn't mean I expect our legal system to recognize it. |
| JaseP Feb 16, 2011 7:41 PM EDT |
@ Jdixon, Agreed,... The law is rife with "legal fictions." One prime example is that when a fact is adjudicated, it is essentially set in stone. It is called in the law, "Starre Decisis," but excuse my spelling if wrong. It literally means, "the thing is decided." And ordinarily, no appeals court overturns a finding of fact, even when it is dead wrong. There are limited exceptions, but in general, once adjudicated a fact, it's a fact (for that dispute, at least). Starre Decisis is why known innocents can rot in jail, why people can be held responsible for things they couldn't have caused, etc. It provides finality in disputes, which is good. But also, it means incorrect decisions stand, as well. Let's imagine, for example, that OJ Simpson is discovered NOT to have killed Nicole Brown Simpson & her lover (not going to happen, but just imagine). The civil judgment would invariably NOT be overturned. Starre Decisis also gives real weight to Charles Dickens's quote I previously mentioned.... |
| dinotrac Feb 17, 2011 12:07 PM EDT |
@bigg -- Why should I have to pay something and to whom should I pay it? |
| dinotrac Feb 17, 2011 12:14 PM EDT |
@JaseP -- I think you're confusing Stare Decisis with res judicata. Stare decisis is the term for respecting legal precedents. Res judicata is the principle that a fact determined in a court of competent jurisdiction. Res judicata does not apply to appeals in the same case, btw. |
| dinotrac Feb 17, 2011 12:17 PM EDT |
hans -- Even Amsterdam doesn't blow enough smoke to make that "universities and publications" thing fly. The vast majority of practical inventions have come from the private sector, not from universities. Heaven help us if we have to slow down innovation to a pace the universities can keep up with. Besides -- what a terrible waste of intellectual resources that can be used for more basic research. Somebody's got to move the basic state of knowledge forward, and that good old fashioned non-profit oriented research is something universities can do far better than the private sector. |
| bigg Feb 17, 2011 12:50 PM EDT |
@dino To quote you: "Somebody's got to do the work of figuring that stuff out and society benefits if it gets done." Yet there is nothing about your statement that is original, smart people did the work of figuring it out, you have not compensated them, and society gets the full benefit. Are there times when patents might make us better off? Sure. Too bad no attempt is made to determine that when patents are issued. |
| dinotrac Feb 17, 2011 2:16 PM EDT |
@bigg - Sorry pal, you don't get off that easily. At least pretend to understand a little bit of what intellectual property is about. Quoting:there is nothing about your statement that is original, No kidding. Had you paid any attention at all, you would realize that IP is about encouraging creative efforts and promoting the flow of useful inventions into the public domain. It is NOT about protecting ideas. It is NOT about protecting truth, justice or the American way. |
| JaseP Feb 17, 2011 2:24 PM EDT |
Quoting: I think you're confusing Stare Decisis with res judicata. You are correct. I am confusing my confusing & pampas Latin legal terms. It shows you how long it's been since I practiced law... I've always hated Latin (not the legalese Latin & REAL Latin are the same thing). And while res judicata does not bind an Appeals Court, in the same case, they are not going to overturn a finding of fact of the lower court, absent some sort of error in the decision making process (wrong litmus test applied, etc.). But Starre Decisus can also lead to legal fictions. It can occur when the precedent is out of touch with reality. An example are the precedents creating the doctrine of presumed paternity in PA, where the father of a child is presumed to be the husband, absent his lack of access to his wife or him contesting paternity. The "bio-dad" lacks standing to assert paternity against a married woman absent one of those things. The courts created it to "preserve families" & "save them the embarrassment" of people in society questioning paternity, despite the fact that marriages where the woman cheats are 2X more likely to end in divorce and that recombinant families are now commonplace. It's similar to the Court requiring clear and convincing evidence to overturn a (software) patent, when the practice of the USPTO is basically to rubber stamp patents. M$ patented the "off button" for gosh sakes, despite 40 years of the Posix command "shutdown -h now" as prior art. |
| dinotrac Feb 17, 2011 2:38 PM EDT |
@JaseP - Yes, but Stare Decisis is not absolute, as demonstrated by Brown v. Board of Education in overturning Plessy v Ferguson. |
| bigg Feb 17, 2011 2:45 PM EDT |
@dino Did you stop the quote partway because you are not able to understand what I wrote? The quoted part is obviously there to point out that you are using the fruits of someone else's effort without compensating them. Here's the rest of what I wrote: Quoting:smart people did the work of figuring it out, you have not compensated them, and society gets the full benefit. |
| dinotrac Feb 17, 2011 2:51 PM EDT |
I stopped the quote because it was the part that mattered. The rest, in fact, contradicts it. If you believe that you were making a point, you are welcome to 1) Define what part of what I wrote qualifies as protectable content, 2) Establish that it has not been granted to the public domain or has not fallen into the public domain, 3) Identify who has rights they wish to pursue. Again: IP is about protectable rights only. |
| bigg Feb 17, 2011 2:51 PM EDT |
@dino And just to show the absurdity of what you are saying, look at what you wrote above: "Boy meets girl, boy loses girl, boy goes to Indiana, gets a gender change and marries a forward-thinking mule who is also a scientologist might. Copyrights are about creative elements." There is no basis at all for the distinction you are making. |
| bigg Feb 17, 2011 2:52 PM EDT |
> Define what part of what I wrote qualifies as protectable content So before you were talking about compensating someone for their efforts, and now you're changing to a discussion of "protectable content"? |
| dinotrac Feb 17, 2011 3:13 PM EDT |
@bigg -Quoting:now you're changing to a discussion of "protectable content"? You're off the deep end. I haven't changed anything and I NEVER talked about compensating people for their efforts. IP law is not about compensating people for their efforts. It is about getting useful and creative works to the public by means of creating a market whereby creators and inventors can be paid for their contributions -- not efforts. |
| JaseP Feb 17, 2011 3:15 PM EDT |
Quoting: Yes, but Stare Decisis is not absolute, as demonstrated by Brown v. Board of Education in overturning Plessy v Ferguson. And in the interim, people and the interests get hurt... Let's face it, the system (as it relates to patents, but maybe the law itself) is broken. Ironically, I hope M$ wins against I4I in the SCOTUS appeal. What they are looking for will weaken software patents and level the playing field a little better. |
| bigg Feb 17, 2011 3:44 PM EDT |
> It is about getting useful and creative works to the public by means of creating a market whereby creators and inventors can be paid for their contributions -- not efforts. Thanks for clarifying Dino. It's good to know that while you have lots of training in the specifics of IP law, you don't understand even the most basic issues related to the economics of IP law. The effort of creating something new is the cost for which the creator has to be compensated. When Carla is deciding whether to write a new book, she considers how much it would cost her in terms of time, out of pocket expenses, etc. When a pharmaceutical company is deciding whether to develop a new drug, they will do so by comparing the cost to the benefit. The social value of what they are doing doesn't even enter the conversation except to the extent that it might mean more revenue from developing the drug. If you don't understand that, there's no point in even discussing it with you. |
| jdixon Feb 17, 2011 3:49 PM EDT |
> When a pharmaceutical company is deciding whether to develop a new drug, they will do so by comparing the cost to the benefit. The social value of what they are doing doesn't even enter the conversation... For the people developing the product, no it doesn't. However, those people aren't the reason the law exists. It exists to serve the public good. And that's what Dino is talking about. You're both correct, but your arguing from opposite directions. Now, whether IP law is still serving the public good is another matter entirely, and per past experience, not one which can usefully be discussed here. |
| dinotrac Feb 17, 2011 3:54 PM EDT |
@bigg -- I can see that your understanding of economics matches your master of the law. First, I said nothing about social value. I talked about value to society. Not the same thing. Second, I talked about market creation as a means to achieve that end. If we eliminate your misrepresentation of my words, your example demonstrates the good side of patents. The pharmaceutical company is more willing to invest millions and millions of dollars to research and test a new drug if they can profit from the end result. Patents grant a monopoly that prevents somebody from swooping in and manufacturing the same drug without doing the research and testing -- not to mention funding a number of potential drugs that don't pan out. The company makes money and society benefits by a) getting a drug that would not otherwise be produced, and b) when the patent runs out, the drug goes into the public domain. |
| JaseP Feb 18, 2011 10:50 AM EDT |
Dino, The problem with the pharma patents, those relating to human genes, is that they also throw a monkey wrench into research. They do not stimulate it. There was a TV newsmag show a while back that addressed this in terms of (one of) the breast cancer gene(s) (20/20, 60 Min. or similar show). One firm's patent on that gene prevented a non-prof from doing breast cancer research. That doesn't promote development, that throws a bucket of cold water on it. The system is broken. Companies are patenting nature and theoretical math. Genes that exist in nature should NEVER be subject to a patent. Computer programs do nothing more than what a person can do with a pencil, paper & a ridiculously long time. Why that should be able to be patentable OUTSIDE of its use within an innovative piece of HARDWARE (as a component to that unique use), is beyond what my moral & ethical compass finds reasonable. Patenting software programs that are used in a general use computer just disgusts me. It is SO contrary to the idea of what a computer is. Patents should be on DEVICES or METHODS OF MANUFACTURE, not on things like shaded menus or notification boxes, or methods of displaying a moving picture. |
| dinotrac Feb 18, 2011 11:48 AM EDT |
JaseP - I expect some of those abuses to be corrected by the Supreme Court, if Bilski is any indicator. WRT theoretical math, I don't know of anybody who is patenting that -- only people who tried. Bilski was very specifically a case affirming the rule that theoretical math (the hedge fund formula) could not be the basis for a patent. I would expect a similar ruling in days (how many days, I don't know) ahead on naturally occurring genes. Your hardware fixation, however, decidedly ignores the realities of the 21st century. |
| jdixon Feb 18, 2011 11:57 AM EDT |
> Genes that exist in nature should NEVER be subject to a patent I'd go farther and argue that genes which could be produced in nature should never be subject to patent. It's not like we created the process which produces genes. Only a gene which can be shown not to be producible in nature should be deserving of a patent. |
| jdixon Feb 18, 2011 12:02 PM EDT |
> Your hardware fixation, however, decidedly ignores the realities of the 21st century. Possibly. However, the precedents for patents were set a long time ago. The extension of them to software and business methods is a relatively new development, was not produced by the legislative process, and has not stood the test of time. It's extremely questionable whether that extension is in the public interest or not. I'd argue that the evidence to date shows that it isn't, and as such that extension is invalid. |
| dinotrac Feb 18, 2011 12:26 PM EDT |
@jdixon - I will say only that, so far, the Supreme Court disagrees with you, and...for the record, the law has never required any kind of hardware for the grant of a patent. What is true is that the USPTO did not grant patents without a hardware connection, although the connection to hardware could get pretty darned tenuous. |
| jdixon Feb 18, 2011 12:49 PM EDT |
> I will say only that, so far, the Supreme Court disagrees with you, As far as I can remember, Dino, I don't believe the Supreme Court has really ruled on the matter. It's merely declined to hear any cases, which is not quite the same thing. And it could be argued that Bilski comes a lot closer to agreeing with me than not. And note that I'm arguing the theoretical case here, not arguing what the law currently is. I acknowledge that the law as it currently stands allows software and business methods patents, as modified by Bilski. Just as current copyright law has been decided to effectively allow infinty -1 year extensions to copyright by the legislature. > What is true is that the USPTO did not grant patents without a hardware connection, although the connection to hardware could get pretty darned tenuous. True, on both counts. |
| dinotrac Feb 18, 2011 1:39 PM EDT |
@jdixon:
Arguably, it would not. From the majority opinion: Quoting: The Court is unaware of any ordinary, contemporary, common meaning of “process” that would require it to be tied to a machine or the transformation of an article. and Quoting: The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those inthe Industrial Age—for example, inventions grounded in aphysical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. The question becomes -- and this may support your claim -- how do you distinguish a process or a software-based invention from the abstract idea sufficiently well to satisfy the requirements for a patent. There is no question in my mind that it is the next major area of court IP action, and that lots of what passes muster today will fail tomorrow. |
| jdixon Feb 18, 2011 2:04 PM EDT |
> The question becomes -- and this may support your claim -- how do you distinguish a process or a software-based invention from the abstract idea Since any software process can be devolved into it's basic mathematical algorithms with no real difficulty, I don't honestly see that you can. But again, I don't necessarily expect the courts to agree. > There is no question in my mind that it is the next major area of court IP action, and that lots of what passes muster today will fail tomorrow. We can only hope, given the current state of affairs. |
| dinotrac Feb 18, 2011 2:10 PM EDT |
@jdixon - Any hardware process can also be devolved into it's basic mathematical algorithms. What does that prove? Nothing at all. |
| jdixon Feb 18, 2011 4:29 PM EDT |
> Any hardware process can also be devolved into it's basic mathematical algorithms. The hardware process can't work without it's manufactured (usually specific purpose) components. That's not true of a program, which can largely work on any general purpose computing device. The two things aren't really comparable. |
| skelband Feb 18, 2011 5:19 PM EDT |
In principle I think patents (and probably copyright) are a bad idea. However, I do think that most people would be more tolerant towards them if the periods that they covered were not so unreasonably long. Since the original idea was to get full disclosure (in the case of patents) while getting a reasonable period of recovering your development costs and a respectable profit, I (subjectively) think something like 5 years after disclosure for patents and publishing for copyright is reasonable. The idea was not to do a bit of work when you're young and swing the lead for the rest of your life off the back of it. |
| dinotrac Feb 18, 2011 5:33 PM EDT |
@jdixon - I have yet to see a program that existed without some kind of tool to create it and some kind of medium to store it. Programs are applied beasts, not pure mathematics. Otherwise we wouldn't need programming languages, programmers, or computers at all. We would simply chant "X to the power of two plus a the sum of the integrals..." into the air and magic would happen. It ain't a Harry Potter world, my friend, and things don't work that way. |
| dinotrac Feb 18, 2011 5:38 PM EDT |
@skelband -- I think you are hitting the major problem on the head. Patent durations aren't too bad for the kinds of inventions that require making things. Those things must incorporate the R&D costs, prototyping, tweaking, bringing to market and manufacturing, etc. That can be very substantial. Software is a crappy fit into the current 20 year patent life span. You don't "make" software the way you make a car. You don't have tooling. You don't have to build a factory. For all the talk about patents, copyrights are actually worse -- in the modern world, it's like they never expire. At least copyright protection is thin, ie, you can't keep somebody from doing something the same way you do, you can only keep them from copying you (though the "copy" doesn't have to be bit for bit). |
| hkwint Feb 18, 2011 9:51 PM EDT |
Dino dino dino dino.... Far older than I am (I suppose), and still not any clue of a Turing-machine. Even while Gus3 posted a link to the explanation above, you still didn't read it (or don't understand). So much talk, so little understanding... So let me try to teach you: Take a bunch of people able to carry out simple mathematical algorithms. They're not very smart and only able to do simple calculations. Put them in a room. Take enough of them, give them enough time. Now, any so called "invention" which those people could carry out if given the right commands and enough time, is a mathematical 'conversion'; transforming existing information. Now, here comes the part you fail to understand: It doesn't matter at all what the medium is. If it's people, a mechanical abacus, electrons or photons: Still, the process of combining "simple mathematical functions" is the same, no matter the medium. However, for nuclei to get excited and admit photons, the medium does matter. It matters _which_ atom you have, the electrical charge (if neutral or an ion and such), and you _can't_ exchange for another medium. So, a cathode ray tube wouldn't work if you exchange medium. For example, you can't exchange vacuum with argon, you can't exchange the electrons with positrons. So, what can those people in the 'mathematics' room do? Well, they can calculate a sinus / cosinus, if given a bitmap they can do photograph-editing, they can do video-editing, 3D-graphing, ray-tracing, h.264, MP3 en/decoding, make integrals, do Laplace-transformations, Leontief input / output calculations, nuclear simulations and so forth. All of them just plain mathematics. However, they can't _built_ an atom bomb. They can't _display_ their 3D graph / ray-trace, because they _can't_ built a display. They can't show their video or listen to their MP3. So yes, you fail to understand programs _are_ pure mathematics, not applied beasts. As long as the "dumb mathematicians" in the room can perform the calculations, there's nothing applied at all! What do you think, do you think a processor is smart? Of course not! All the tiny blocks on their own are dumb, just like the mathematicians in the room. Every 'mathematics' is built of smaller blocks - until you reach the smallest and simplest axioma's. So yes, it's pure mathematics. If you have read Gus3's link of Groklaw, you would have understood by now. We _don't_ need programmers, languages and computers at all! Great mathematicians - like Fourier analysis (which involves millions of factorials! And pretty much is the invention of the MP3) - was invented in the 18th century (or so) without computers and languages. The 'dumb mathematicians' in the room can solve _all_ our mathematical problems our current supercomputers do! Except for innovating new math, like which I mentioned happens at universities, but computers aren't capable of doing so. Computers can only make linear combinations of what they already have, which is the same as the mathematical transformation done in the 'mathematicians room'. But if given long enough, those people in the math room can do _anything_ programming languages and computers do. Programming languages and computers are not a matter of "can't live without", but a matter of convenience. If all lawyers are ignorant like you, I can understand why the US-patent system is screwed up like it is. Not even _trying_ to grasp what you were told about a Turing-machine and such, instead relying on your Latin fancy names to discuss the topic. Even while the two topics are pretty much 'orthogonal', which means: You can't describe a boy entirely by just using a combination of girls. Sigh... The 'great mind' which wrote the article at Groklaw was absolutely right, lawyers _should_ take classes and exams in information theory before being entitled to call themselves "lawyer", or stay far away from software patents and any discussion about them. Their misunderstanding makes any argument pointless, like shown above. |
| jdixon Feb 18, 2011 9:57 PM EDT |
> Programs are applied beasts, not pure mathematics. Otherwise we wouldn't need programming languages, programmers, or computers at all. We'll have to agree to disagree, Dino. It's the application (the running) of a program which makes it into pure mathematics. In almost all modern programs, the machine code which is actually run wasn't even written by a person, it was produced by a machine. And to make matters worse, with modern compilers, multiple programs could be written which would optimize to that same code. By definition, that's not something (produced by a machine and covering multiple implementations) which should be patentable. Patent law simply isn't a good fit for software. Copyright would be better if the duration were something reasonable, but as is it's even worse. As is, we simply don't have a good solution to the problem. Something which makes FOSS all the more important. |
| dinotrac Feb 18, 2011 11:13 PM EDT |
Hans -- Ignorant like me, eh? Pretty cocky attitude, especially when you consider that I likely wrote my first computer programs before you were born. Probably knew what a Turing machine was before you were born, too. Hell -- my first computer workstation with it's paper tape reader was probably as close to a Turing machine as real world (ie, not thought experiments) have gotten. |
| dinotrac Feb 18, 2011 11:15 PM EDT |
@jdixon - You are free to disagree, just as creationists are free to believe that Noah herded dinosaurs onto the Ark, along with two of every other animal in the world. |
| tuxchick Feb 18, 2011 11:21 PM EDT |
Haha smartypants dino, caught you in a wrong! It was seven of each animal, going two by two. Snerk. Now to find more beer. |
| tuxchick Feb 18, 2011 11:22 PM EDT |
And the dinosaurs had their own special ark. This isn't in the official bible, I just know. |
| dinotrac Feb 18, 2011 11:58 PM EDT |
@tc - I bow to your wisdom. A little known story found only in lesser known versions of the Rick James Bible: You couldn't just put the Ark anywhere because of it's size. It had to be parked in a special structure known as an Ark Park. One day after the flooding had subsided, Noah's son Shem, having developed a serious case of Ark fever during The Flood, grabbed several wineskins and walked off into the (wet) woods, trying to get as far away from the Ark as he possibly could. He drank and he drank and he drank. He drank til he stank. And then he drank some more. The next day -- or maybe the day after that -- he woke up still drunk and nursing a terrible headache. At first, he couldn't tell where he was. "Wh-- where -- am I? Thish doshnt, ahhhhhh, look like ugh the plashe I wash yeshterday." He didn't know where he was until he saw an ungainly burrowing creature about the size of a modern German Shepherd dog, but with sparse coarse hair and a long nose that was dug into the ground, slurping up ants. "Oh nnnnooo!," Shem cried out unsteadily. "Isss -- Isss -- Isss the ArgghParggh". At the very moment, Shem's brother Ham walked up, and the poor ungaingly creature enjoying his simple meal of ants was forever known as an aardvark. |
| hkwint Feb 19, 2011 8:10 AM EDT |
Dino: Learned that cocky attitude from you! For which I have to say "thanks". Apart from blaming me being cocky, if you understand Turing machines since 1080, why don't you understand all programs are mathematics? No reply on contents? |
| dinotrac Feb 19, 2011 9:10 AM EDT |
Hans - Different time zone. "All programs are mathematics." Why do you not understand that everything is mathematics? Or the difference between theory and application? Or that the use of a tool is not the same thing as the tool itself? The difference, say, between a spreadsheet and additions, subtraction, multiplication, and division? Or -- and this to the point -- the fact that you can patent a nuts and bolts implementation of something without gaining a patent on a turing machine or any of the basic mathematics behind your implementation. Just as it's possible to use steel and iron to build things even though some patents are out there for things built with steel and iron. I'm truly shocked that you have noticed that, even with the presence of software patents, it is possible to write and run software. Yup. You can whip out your C compiler, ruby interpreter, what have you and get "Hello World" displaying without so much as a peep from Microsoft, IBM,Oracle, or any of those nasty little patent mills that try to rape people with questionable claims. I'm perplexed at your inability to appreciate the distinction, and it is beyond my meager ability as a teacher to help you, but -- we have a pretty entertaining show here in the United States that might help you grasp the concept. It's called "The Big Bang Theory", and the difference we're talking about is akin to the difference between Sheldon and Howard. |
| hkwint Feb 19, 2011 11:47 AM EDT |
Because everything isn't mathematics. A bolt and nut are no mathematics, apart from a certain configuration of particles, there's also the particles themselves. Use other particles and you won't end up having a bolt and nut. For spreadsheets it doesn't matter though (it's not a program anyway), it's just a configuration of information, regardless of the medium. So, there you have it: One can have a configuration of particles where the medium matters, or a configuration of information where the medium doesn't matter. First is tangible, second is math. Then, it doesn't matter how applied or complex the 'combined' math is, or the difference between theory and application because after all it still remains math: Doing transformations on information. Because that's what math's all about! If math is outside the scope of patents, than it's silly to say 1+1 isn't patentable but h.264 which makes use of it is. That's not consistent, math is math no matter how complex. I'm OK if someone says simple math shouldn't be patentable and complex math should be, but at least be honest about it! And think of a way to distinguish between simple and complex math. Of course everything in the universe can probably be described by mathematical equations, but the equations are not the matter itself. The information only points to certain matter. While - when dealing with information - the description is the information, so configuration and actual substance are the same, and there is nothing beyond the configuration itself. Big difference. Watched some shows of the Big Bang Theory, but sadly I find it pretty boring; pretty much the same cliches as any US show which hit our channels, nothing original. So I can't tell what name refers to what guy. |
| jdixon Feb 19, 2011 3:57 PM EDT |
> Why do you not understand that everything is mathematics? Or the difference between theory and application? Or that the use of a tool is not the same thing as the tool itself? Dino, quit exaggerating. First, while mathematics can be applied to pretty much anything, not everything is mathematics. There are actual physical objects out there which existed prior to our understanding of mathematics. And we understand the other things as well as you do. There's no need to belittle your opponents positions to make your point, Up to this point it was standing fairly well on it's own. Oh, and since birds are considered to be the direct descendants of dinosaurs, and the story as given indicates that Noah released a dove from the ark, I think your point can be taken as demonstrated. |
| dinotrac Feb 19, 2011 3:58 PM EDT |
Quoting:which makes use of it A glimmer of light there. Enough said. |
| dinotrac Feb 19, 2011 4:12 PM EDT |
@jdixon - As to belittling people, I wasn't the one who said Quoting: If all lawyers are ignorant like you, I can understand why the US-patent system is screwed up like it is. Not even _trying_ to grasp what you were told about a Turing-machine and such, instead relying on your Latin fancy names to discuss the topic. But... On going back and re-reading what Hans wrote, it occurs to me that it could be in the style of my back-and-forths with Paul. We don't always read things the way they were intended, and, if that is the case, I owe Hans and apology. Anyway, back to the actual topic: OK. Let me ask you this: Imagine that you invent a new kind of valve for internal combustion engines that allows you to re-tune combustion characteristics to achieve 50% more fuel economy. Most people, I think, would say that is precisely the kind of thing that patents were meant to cover. But here's the catch -- you did all the design with CAD software, tested it out with CFA, assorted simulations, etc. The design is worked out and tested before a single piece of metal is formed. Should you be denied a patent for your invention because all of the real work was done with software tools, and the design was created in software, which is, after all, just mathematics? |
| jdixon Feb 19, 2011 4:20 PM EDT |
> Should you be denied a patent for your invention because all of the real work was done with software tools, and the design was created in software, which is, after all, just mathematics? If I work out the code for an i386 hello world program on an abacus, should I be allowed to patent the code? It's an equally valid question. The real question is what should and should not be patentable. My position is simply that software is too far removed from the concrete world that patents were designed to cover to be considered patentable, and that allowing software to be patented has not been a net benefit to society. You obviously disagree. |
| dinotrac Feb 19, 2011 6:28 PM EDT |
@jdixon - I see you ducked the question completely. Can't say that I blame you, as it makes obvious the problem with your position. As to the "Hello World" program, it would not be patentable however you do it because it is not a new invention meeting the assorted standards (including non-obviousness to a practioner in the field, and not covered by prior art, etc) required for an invention. You're right that the real question is what should and should not be patentable, but the software/hardware divide is artificial. Invention does not take place in hardware. It takes place in the creative activity of people. Hardware is, at most, an expression of that creative input. |
| jdixon Feb 20, 2011 1:08 PM EDT |
> I see you ducked the question completely. No. I responded with an equally inane question from the opposite direction. Doing my best to demonstrate that neither one is applicable to the central point. > ...including non-obviousness to a practioner in the field Writing a program using an abacus is obvious? OK, if you say so. > ...but the software/hardware divide is artificial. No, it's not. The patent was designed for the hardware world. It simply doesn't fit software. I don't disagree that there should be a way to reward creativity in software, but the patent system isn't an appropriate method for doing so. Our efforts would be far better spent on coming up with one that is. |
| gus3 Feb 20, 2011 7:32 PM EDT |
Quoting:the software/hardware divide is artificial.Re-read my second comment in this thread. The hardware is the switch. The software is concerned with when to turn the switch on or off. The divide is completely real, despite patent lawyers' attempts to blur the lines for their own gain. |
| dinotrac Feb 21, 2011 12:20 AM EDT |
@gus3 - I get no gain whatsoever by refusing to be stuck in quaint notions. I donn't practice and have never made a dime associated with patents. Patents are about invention, not about hardware, software, or underwear. You insist on running away from the CAD example, but your position more or less means that using modern tools renders inventions unpatentable. If you do all the inventive work on a computer, then creating the hardware is not an act of invention. The invention comes with the assorted drafting, modeling, and analysis programs -- which reduce to math as much as any other program. I must admit to being surprised. I don't understand why people who I presume to be familiar with software and development would find this difficult. |
| jdixon Feb 21, 2011 7:06 AM EDT |
> You insist on running away from the CAD example, but your position more or less means that using modern tools renders inventions unpatentable. As my reply attempted to point out: No more or less so than using ancient tools makes an otherwise unpatentable product patentable. You can patent a product produced with software. You shouldn't be able to patent the software itself. |
| hkwint Feb 21, 2011 7:54 AM EDT |
Dino: Sorry, had a very bad week, one of the worst of my life. Women involved, need I say more? Felt miserable and upset. Lack of patience. Please take it as a joke, thoug at the time I'm not sure it was meant as one. But assuming I was living in the smoke of Amsterdam wasn't a smart thing to do either; though I live in the most poluted area of Europe. But it isn't Amserdam, I don't have anything to do with that city. And I'd rather keep it that way, thank you! As to the CAD-example: Above I already ansered that one. MP3 refers to Fourier, which refers to sinuses, which refers to factorials, which refers to multiplying, which refers to addition. So lots of maths which all refers to more / other math. The 'medium' of the math is not important, one can consider it without a real life example. It makes sense even if matter didn't exist. CAD-models (the one currently on my display!) refer to "real world particles". CAD-models don't make sense without thinking about the real world example. CAD models don't point to 'more mathematics', but to real world implementation. That's why I think you shouldn't be able to patent the CAD-model (and I think it isn't possbile), but only the "real life implementation". Of course, there's a great similarity in optimizing a CAD-model and optimizing crypotgraphic schemes. But the first leads to an implementation with particles, the second leads to "another mathematical model". So, math can exist without particles, because after all it's just "information". A CAD-model is just information / math too, it can exist without a medium. But when the workers in the factory (right behind my back currently) take the drawings and make something, then the Turing-| boundary | is crossed, particles are involved and suddenly there's something "real life", which can be patented. So thing is: You shouldn't confuse "to be" with "pointing to". A pointer is something else than what's at the address it points to! So software is math and refers to math. A CAD-model is math and refers to matter. Just like you can make a mathematical model of the whole universe which is math, but it points to matter. There's the difference! Of course, if one optimizes some mathematical algorithm, I think one should be rewarded. Maybe by protecting the result. But you have to admit you're protecting "pure math"; thinking otherwise wouldn't make sense. And that's why distinguishing between "math" and "applied math" doesn't make sense, because it's hard to find a border. The difference between what a Turing-machine (or a room full of 'dumb'mathematicians) can or cannot do however, is a hard boundary. You can test patents against such a criterium. Those mathematicians can make a CAD-model, but the can't make the implementation. Hence the pure-math CAD-model isn't patentable, but the implementation is. Like said, mathematics is transforming information. Pretty much the same as reasoning, the things lawyers do. So if math could be patented, then why not reasoning? Or transforming business information? |
| dinotrac Feb 21, 2011 8:49 AM EDT |
Hans - Not to worry. I am all too well acquainted with bad days, women, and their impact. Heck -- I live with a teenaged daughter. My life is all about bad days and females. The CAD (and other computer-assisted tools) thing is more interesting than you give it credit for because it goes to the very heart of what invention is. I find this assertion of yours interesting: Quoting:A CAD-model is just information / math too, it can exist without a medium. I don't know how that happens. I'm certain that it hasn't happened to date, and I would bet that somebody discovering a way to store information without a medium could parlay that discovery into big money. I don't think it matters. When it comes to invention, the differentiation between bits of subatomic particles coalesced into a form that our eyes can see and our fingers touch as opposed to bits of subatomic particles that can direct creation of a form that our eyes can see and our fingers touch seems wholly artificial. And -- let's leave your Turing machine behind. The Turing machine was a thought experiment, not a practical device. Even it, however, used real world analogs -- the program was referred to as a "tape" and the machine made changes to the "tape". Actual computers can do much more than that. With 3D printers and CAM, they can direct the creation of a device with no human intervention. The simple reduction of all that math to expression in a different bunch of subatomic particles assembled in a different way by a machine that doesn't think -- can that really be the act of invention instead of all the hard work developing the input to the process that does the mundane crafting of the final product? What about simulators? Would simulation software -- stuff that intentionally mimics real world items like cars and airplanes or hearts, etc be patentable and other categories not? A simulation is tied to "real life". |
| hkwint Feb 21, 2011 12:27 PM EDT |
The 'Turing' machine - in my opinion - also refers to the room full of mathematicians using pen and paper to do the work. Hence why I said "the medium doesn't matter". Of course CAD-models can exist without a medium, because currently 'consciousness' can't be explained by means of material sciences. So if you imagine a CAD model, it does exist; because information can exist solely in someones consciousness. Matter o.t.o.h. can't. So basically, information and 'math' which transforms information doesn't need "particles" to exist, only consciousness is enough. Hence the room full of mathematicians; they don't need a Turing machine, because - with their consciousness - they are one. Of course, as you might have understood, the software of simulators is pure math / information / information transformation. The room full of mathematicians could simulate the flight of a plane - and draw pixels of the view seen from the window using raytracing and such if they want. And of course, building a complicated 'surround' screen isn't purely math, as it deals with matter. Don't let the mathematical equations of quantum mechanics fool you: Those equations are not matter, they refer to matter. They are a mathematical model of matter. Hence, the view "everything is math" isn't true. Just as the drawing of the pipe isn't a pipe, but only a referral to the pipe. So, those who think "everything is math" suffer from the what I'd like to call "physician syndrome": They think their models are reality, and forget their formulas are only a limited model of reality. |
| dinotrac Feb 21, 2011 12:51 PM EDT |
Hans -- Some a CAD model is not some ethereal consciousness. It is a specific thing represented in a medium. It has to be -- it was created by a CAD program. That alone takes it out of the realm of conceptual mysticism. As to some new-agey mystical notion of consciousness, I call Occam's Razor. There is no evidence of any kind to support the presence of a "consciousness" without a medium -- be it wetware inside our skulls or encoded in quantum bits in some kind of holographic miracle. Law is a mundane and practical thing, a blunt instrument that must deal with the limitations of mundane and practical things. It has no way to deal with things that cannot be demonstrated in some way to exist. |
| hkwint Feb 21, 2011 2:22 PM EDT |
There's no evidence of consciousness being materialistic too, you may remember. And your last paragraph perfectly explains why law fails. "Information" is not something which can be "property" because it's just entirely different. |
| skelband Feb 21, 2011 3:14 PM EDT |
An issue related to this discussion pertains to the balance of r&d cost and effort and the cost/effort of manufacture. For a "thing", r&d costs generally concern thought, trial and error, set up costs for molds, tooling, building factories and the like. However, there are generally costs associated with the making of the item. For the situation where there is practically no cost associated with manufacture and delivery of said item (pure information for example) then we run up against a natural question as to whether or not it is reasonable for a receiver to have to pay for it. Generally speaking, we pay for things that we cannot obtain or make ourselves. We are purchasing the time and effort of someone else to do it for us. This works great where that effort is obvious. Like buying a piece of furniture or a TV or even something bespoke and ephemeral like the services of a lawyer or a car mechanic. They are giving something to us of value that requires some loss on their part (e.g. time and materials). The question of whether something that is information can be patented is also tied to the question of its intrinsic value and I think this goes to the heart of whether or not people think that it makes sense. It also explains why it is fruitless to try to ban copyright infringement where the act of duplication requires practically no effort. Regardless of the balance between production of the master information and production of the copy, people will naturally see that the direct effort required for the production of the copy is negligible and therefore valueless and the balance of effort exchange is seen as unfair. "Why should I pay $60 for a copy of a film/software/music/e-book that involves almost no cost to produce?" We could say that information is as much a commodity as a physical item, but I think whether or not there is a real distinction is moot. As others have said, information wants to be free and the direct cost associated with its freedom is negligible. |
| gus3 Feb 21, 2011 3:34 PM EDT |
@dino:
Quoting:I get no gain whatsoever by refusing to be stuck in quaint notions.I deliberately left that phrase open for interpretation; if the shoe doesn't fit the reader, it isn't a big deal from where I stand. There are plenty of others, to whom my words apply. But there is nothing "quaint" about the differences between physical reality and intellectual intention. Are fractions "quaint" simply because they can't handle pi, e, or the square roots of prime numbers? That doesn't mean we give up using fractions. The same goes for manufactured devices vs. how they are used. Each aspect has its realm, and its tools. One does not use the terminology of a farm to discuss library science. |
| dinotrac Feb 21, 2011 4:07 PM EDT |
@skelband - I think there is a legitimate problem with a system that offers just "patents" or "copyright". Software has been shoehorned into both of those categories and its an ugly fit -- especially when you consider that copyrights weren't intended for functional items. You can't generally copyright the recipes in a recipe book, for example, although you can copyright the book itself and any "colorful" creative text within it. The real bite about patents is that they last 20 years. That's generations in software time and reflects the fact that there is no manufacturing component to software, just r&d and support. If the courts really want us to move into the information age, they should be nudging Congress to do the same and come up with a category of protection specific to software. |
| jdixon Feb 21, 2011 5:26 PM EDT |
> If the courts really want us to move into the information age, they should be nudging Congress to do the same and come up with a category of protection specific to software. Bingo. Something like a 3-5 year monopoly with another 3-5 option with minimal continued availability and support requirements would be a good starting point. Maybe after that the owner would retain source code rights but the program itself would become freeware. But that's the conversation we should be having. However, entrenched interests stand in the way of such reform. And I have no idea how the system which gave us the DMCA and the Mouse extension can be made to deal with that. |
| dinotrac Feb 21, 2011 7:00 PM EDT |
Quoting:And I have no idea how the system which gave us the DMCA and the Mouse extension can be made to deal with that. And for those who are used to knee-jerk Republican/bad Democrat/good responses, please note that Chris Dodd is getting ready to be the Chief Executive for the MPAA (All bow before the graven image of Jack Valenti). |
| JaseP Feb 22, 2011 11:34 AM EDT |
@ Dino...
Quoting: Your hardware fixation, however, decidedly ignores the realities of the 21st century. Who's reality? The software developer who wants Cpt. of Industry salaries & bonuses, or large multi-national & media corps that want to force us to re-purchase their crap every time they re-package it? It certainly doesn't ignore the start-up that wants to break in with an innovative product, only to find that someone patented the concept of an in-car computer, a manner of figuring out directions on a map or the off switch and is threatening suit (the TomTom suit, & other M$ real world examples). My hardware fixation is my response to oppressive regimes "gaming the system." In my opinion, if you want to patent software, it had better be so unique that it had never even been conceived of before [he] so Earth-shatteringly innovative that NOBODY would question that you had "invented a better mouse trap." About the only things that come close, in my opinion, are[/he] true voice synthesis, voice recognition and neural-nets. All three are decades old and therefore beyond patenting in the first instance. But, you know what opinions are like,... |
| jdixon Feb 22, 2011 12:08 PM EDT |
> ...please note that Chris Dodd is getting ready to be the Chief Executive for the MPAA... Hey, he's an honest politician. He stayed bought. |
| krisum Feb 24, 2011 2:10 AM EDT |
@jdixon
Quoting: Dino, quit exaggerating. First, while mathematics can be applied to pretty much anything, not everything is mathematics.I see that this applies to you as well. Most of the non-trivial software systems (and some of the trivial ones too) cannot be modeled as pure mathematics (leave alone saying that they "are" mathematics). However, what Dino likely meant is that real-world systems, engineering in particular, can be modeled as mathematics or that their basis is mathematics. A distributed failure recovery system, for example, has as little (or as much) to do with mathematics as the design of a concrete building. Same goes for umpteen other software systems that are trying to solve real world problems. If you have objection to the usefulness of patents in general then its another matter, but it makes no sense to say that patents should not apply to software because they are mathematics or are far removed from concrete things. What should be patentable in software (compared to other fields) is a different question e.g. things that are considered nuts and bolts in software should obviously not be patentable but apparently are. |
| hkwint Feb 24, 2011 7:50 AM EDT |
So you think mathematics should be patentable? Does that involve "reasoning" - such as lawyers do? Because after all, that's just another form of transforming information. |
| dinotrac Feb 24, 2011 11:38 AM EDT |
@krisum -- Yup. Somewhere along the line, people have decided to ignore just what gets patented -- which is invention. |
| dinotrac Feb 24, 2011 11:40 AM EDT |
@hans - You are coming straight out of left field (US slang for Huh???????) Nobody is suggesting that mathematics should be patented, just as nobody is suggesting that electrons be patented. It's invention that patents seek to encourage, not mathematics or atoms of iron, etc. |
| JaseP Feb 24, 2011 12:30 PM EDT |
Quoting: Somewhere along the line, people have decided to ignore just what gets patented -- which is invention. You are making a straw man argument. Nobody is saying that invention should not be patented. What we are saying is that we dispute that software IS invention. Creative??? Sure!!! Useful??? Absolutely!!! But is it really invention, any more that a creative brush stroke is inventive, or an artfully created moving picture is invention??? If you invent a new canvas on which to put art, like a new type of film, or a new type of paper, THAT is invention. A computer is more like the canvas, and the program, the art. Software patents are like patenting the Mona Lisa. |
| mrider Feb 24, 2011 12:38 PM EDT |
I have to say that this is an interesting thread. It would be interesting to find out how many of those that are arguing are programmers. Not just dabble in programming, but earn their daily crust by writing code. I am a programmer. And frankly, software patents scare the living heck out of me. Personally, I think that JaseP's description of patenting the Mona Lisa is apt. Patent the canvas - sure. Patent the paint - sure. Patent the brush used to create the painting - sure. Patent the artistic and/or engineering result of using those? Are you kidding? |
| dinotrac Feb 24, 2011 12:44 PM EDT |
Quoting:Creative??? Sure!!! Useful???Absolutely!!! If that's not at least a partial definition of invention, I rather wonder what is. Quoting:program, the art. I've seen many, many programs. Damned little art. I certainly would never compare a piece of software to the Mona Lisa. So far as I can tell, the Mona Lisa doesn't do anything. Most software does. You seem to be confusing a lot of issues, however. Software might or might not be art, but the use of software, ie, writing a computer program to do something is not, so far as I know, patentable. Writing software is how you do things on computer. Inventions embodied in the software you write, so long as they pass muster -- no prior art, not obvious to the ordinary skilled practitioner in the field -- should be as patentable as inventions embodied in iron and steel or copper and silicon. It is not the medium -- whether steel or code -- that is patentable. It is the invention. |
| dinotrac Feb 24, 2011 12:51 PM EDT |
mirdier - I've earned my living by writing code for a very very long time. Software patents don't scare me in the least - if they are awarded properly. The Supreme Court has been moving in a proper direction by questioning the low standard of obviousness that the USPTO has applied to software patents. Basically, the assumption has been that programmers are monkeys -- and not bright ones at that -- and the very fact of writing a program to do something is not obvious to a programmer. Another problem is with prior art. Software patents were not granted for the first 50 years or so of digital computing, but just about every major advance in computing was made or envisioned in that time. For most things, the patent database is the initial source of a prior art search. No patents -- no prior art found. This problem is not insurmountable, but, especially with the assumption of slow-thinking monkeys, real. |
| hkwint Feb 24, 2011 1:09 PM EDT |
Dino: Invention is nothing more than mathematical combinations (linear combinations) pretty much most of the time. It's those linear combinations which are patented, in the case of software patents. New combinations of existing "hierarchical" blocks. Lawyers and the like use a system of logic (modus ponendus ponens, double negations, or-elimination and such) to form their own mathematical combinations, which are inventive as well. Because sometimes they combine said logic with the surroundings and the case, with real life stuff and such, and then all the suddenly it may look as if it isn't 'math' or 'linear combinations' anymore, but "applied logic". Logic was just a tool to use for the reasoning. So, your so called 'innovation' / 'invention' is nothing more than mathematical combinations. Patenting 'innovation' pretty much is 'protecting new combinations of existing blocks'. But sometimes those blocks themselves point to pure math, and sometimes they don't. It's perfectly possible to distinguish when something is "pure math" or not, and where the border is. A 'distributed failure recovery system' is partly 'pure math', partly not. The border can be drawn when imagining which part can be done by a 'room full of dumb mathematicians'. They could do hamming code, error checking, xor-ing and so on. They can't build harddisks or cables. Distinguishing is not that hard actually. Far easier than a so called 'inventiveness check' (or something along those lines). So, protecting such 'innovation' partly means patenting pure math. When I make a drawing (technical one), I risk infringing on patents as soon as it's build, sold and distributed. But such can be dealt with, because the patents in the field are limited. When 'mrider' or any other coder codes something and sells it / distributes it, the software may infringe on patents as well. But these are 'logic' patents, protecting blocks of math, blocks you need to combine to arrive at new combinations; pretty elementary building blocks. These are far harder to sidestep. Imagine being a lawyer and not being able to use certain 'logic blocks' - like if-elimination or such, and you'd see your job becomes very hard - if not impossible, and no real innovation is protected at all. Just bullying people. |
| JaseP Feb 24, 2011 1:16 PM EDT |
Quoting: Inventions embodied in the software you write, so long as they pass muster -- no prior art, not obvious to the ordinary skilled practitioner in the field -- should be as patentable as inventions embodied in iron and steel or copper and silicon. It is not the medium -- whether steel or code -- that is patentable. It is the invention. Not in my book, not by a long shot... The invention was the machine that performed the calculations. Software is a pattern, like the ones that form a sentence, or the particles of color that form a picture. It's the MACHINE that performs the transformation on THEM. Software is a creative work, but it doesn't change. The programmer must plan out the contingencies of the instructions it gives the machine. The program just reconfigures the machine to output the desired result. Take the player-piano,... The piano, its mechanism for playing paper tapes,... patentable. The songs on the tapes, copyright governs them, not patents. Arguing for software patents is like arguing for songs to be patented. The computer & the piano, both, can output the desired result already, needing only the written (or punched) instructions to do so. The computer just has the additional mechanisms for being able to jump around on its version of the player tape. You, Dino, are just "snow-blinded" by the increased complexity of the computer's version ot that player-piano tape. Don't get snowed... |
| dinotrac Feb 24, 2011 1:25 PM EDT |
JaseP -- And the invention can be the PROGRAM that applies the concepts. But, for the record, the invention is NOT the MACHINE. The machine may embody the invention, but it isn't the same thing. Patents would make no sense if the invention were the machine. You could patent the machine, but what would that get you? Somebody could make another machine exactly like that one because is it is the machine that is patented, not the creative contribution embodied in the machine. You could not grant license because your blueprints, technical descriptions, manners of operation, etc, could not be the invention, only the machine. And, holy crap! I guess you could never patent medications because they aren't machines at all. |
| dinotrac Feb 24, 2011 1:28 PM EDT |
Quoting:So, protecting such 'innovation' partly means patenting pure math. It never means that. Some dipsoid patent examiner might get it wrong and create a headache for somebody who has to defend against a bad patent, but you cannot patent pure math. If you create a system that uses pure math, the only elements that can be patented are the parts that you came up with. Anybody else is free to use the same pure math that you did. |
| jdixon Feb 24, 2011 2:02 PM EDT |
> If you create a system that uses pure math, the only elements that can be patented are the parts that you came up with. Anybody else is free to use the same pure math that you did. Dino, the patent system will be implemented and maintained by bureaucrats with little or no software training. The system you're proposing will never work because the people running it won't be competent to make the decisions necessary. There are ways around that problem, but they'll never be instituted. So we'll just wind up with more of what we have. Again, software patents do not serve the public good, which is the legal basis for their existence; and as current implemented, they can't. |
| krisum Feb 24, 2011 2:38 PM EDT |
@hwkint
Quoting: So, your so called 'innovation' / 'invention' is nothing more than mathematical combinations.Huh, just like any new material/medication is nothing more than a combination of atoms (or energy patterns, or ...) Quoting: A 'distributed failure recovery system' is partly 'pure math', partly not.Any software that uses I/O facilities, for example, is not pure math. Or as soon as memory comes into play. But that is not the point... Dino has tried it multiple times, let me try once more. A civil engineering design, for example, is not bereft of invention because it used only "pure mathematics" for the modeling. Or designing a new drug nowadays typically involves modeling using software for most of the molecule design, i.e mostly "pure mathematics". Quoting: But these are 'logic' patents, protecting blocks of math, blocks you need to combine to arrive at new combinations; pretty elementary building blocks.Which is a different issue. As I said the nuts and bolts of programming should obviously not be patentable. @jdixon Quoting: Again, software patents do not serve the public goodA hypothesis, and one that can be argued for all kinds of patents. Real problem may be the kind and number of software patents being granted. |
| jdixon Feb 24, 2011 3:02 PM EDT |
> Real problem may be the kind and number of software patents being granted. Actually, I would agree with that. Sharply limited software patents, of limited duration, for truly innovative creations, would probably serve the public good. But that's not what our current system gives us. And you're the one arguing that the current patent system is applicable. So tell me how to fix it in a way that will get implemented within our current system. Then maybe I'll listen. Arguing for an obviously broken system isn't going to convince me, regardless of how internally consistent the argument may be. Especially since the argument of software being too close to the underlying mathematics to be patentable is also internally consistent. |
| dinotrac Feb 24, 2011 3:12 PM EDT |
@jdixon -- Not as bad as you think, but there is (or, at least, used to be -- might be better now) a major chink. Patent attorneys -- who actually do a bunch of the heavy lifting -- are expected to have an engineering background. When I was in law school, I considered patent law, buy my software background was not sufficiently "engineery" for entry to the patent bar. I'd have had to study up (in addition to patent law) and take an exam certifying me as an engineer. My guess is that there are plenty of technically proficient people int the patent process, but in the wrong technologies. How else can you explain their inability to understand the incredible creativity of software people? In my vision of the world, if you have patents, you **can** have software patents, but probably **don't** have very many for the simple reason that the ordinary practitioner of the art (which is the standard of obviousness) is such a creative little devil. |
| gus3 Feb 24, 2011 4:07 PM EDT |
Quoting:Most of the non-trivial software systems (and some of the trivial ones too) cannot be modeled as pure mathematicsOnce the input to the software is taken into account (Turing's oracle), the pure mathematics are all that remain. Or has the Church-Turing Thesis been disproven? |
| JaseP Feb 24, 2011 7:17 PM EDT |
Quoting: The machine may embody the invention, but it isn't the same thing. Patents would make no sense if the invention were the machine. I follow your point in the first paragraph above. You are saying that the patent is on the idea (the eureka moment) which is embodied in the machine. But, the second is a non-sequitur. If you have the protection of a patent on a thing (or process), then anyone copying it (without permission) is violating your rights. I'd argue that without some tangible result (or the potential for some tangible result of a process), you do not have something that can be patented. In the case of (general use) computer software, it's already all been done. There is already; machine produces image, machine delivers sound, machine operates some other machine, machine manipulates data, machine takes X form of input, machine gives status of itself, machine delivers status of X event, etc, etc, ad nauseum. Unless a piece of software delivers some new, spectacular thing that nobody has conceived of (& what THAT could be escapes me), most of what is the possible function of computer software has already been done (& done to death). The major problems are trivial, non-unique, already been done (prior art) patent filings. With the burden of proof (to a clear & convincing standard) resting on those trying to invalidate the patent, the system can be gamed with what should be invalid patents. A prime example is M$'s FAT32 patent. It was invalidated in one challenge, only to be reinstated in a closed re-hearing. Now it's M$'s front line offensive weapon against open source. But, it had been done before. M$ just put a little tweak to the thing, & "presto," an IP weapon was born. I know you want IP protection for programmers' hard work. But it should be done by extending copyright protection. |
| gus3 Feb 24, 2011 7:29 PM EDT |
Quoting:Unless a piece of software delivers some new, spectacular thing that nobody has conceived of (& what THAT could be escapes me)Doing it in XML, over the Internet. /sarcasm |
| dinotrac Feb 24, 2011 7:33 PM EDT |
JaseP - On the first, you are close but not quite there. You can't patent an idea, and so the idea is not the invention. The invention is reducing the idea to something useful. It may seem like a picky point, but lots of people had the idea of an electromagnetic telegraph. It took Samuel Morse to reduce the idea to something useful. As to the second, yes -- you need a tangible result. Couldn't argue for a moment, but there is no reason why that tangible result has to be steel or silicon or what-have-you. The very fact that you are able to type your response indicates that software is, in fact, a tangible result. The browser you are using works in prescribed ways to give the result you expect. It is not some thought experiment or some ethereal "something" for which we can find no evidence in the real world. Fire up your computer, start up the app, and there it is. |
| gus3 Feb 24, 2011 7:57 PM EDT |
@dino: The letters on the screen are not tangible. The pixels are; I can touch them (once I remove the LCD matrix from the display frame), but I cannot touch their candela output states which combine to make the letter "A". One can no more touch a light bulb's wattage. Or would you say that the bit combination "01000001" is also tangible, anywhere it occurs, because it represents the letter "A" in ASCII and UTF-8? |
| dinotrac Feb 24, 2011 10:13 PM EDT |
@gus3 - I would say that your conception of the world is so foreign to me that I cannot conceive of how to continue this conversation. Cheers. |
| jdixon Feb 24, 2011 11:00 PM EDT |
> In my vision of the world, if you have patents, you **can** have software patents, but probably **don't** have very many for the simple reason that the ordinary practitioner of the art (which is the standard of obviousness) is such a creative little devil. Even though I disagree with your reasoning, I could live with that. So, how do we get there from here? |
| jdixon Feb 24, 2011 11:02 PM EDT |
> I would say that your conception of the world is so foreign to me that I cannot conceive of how to continue this conversation. I would say that's largely been the problem with this entire conversation. We see things so differently that we're talking past each other. |
| krisum Feb 25, 2011 2:53 AM EDT |
@gus3 > Once the input to the software is taken into account (Turing's oracle), the pure mathematics are all that remain. Or has the Church-Turing Thesis been disproven? Turing machine, lambda calculus are only for defining computability; oracle machine is a thought machine to study decision problems (halting problems etc.) and has got to do nothing with inputs. As soon as I/O facilities of modern computing systems come into play, it cannot be modeled using these precisely because they are designed for dealing with computability. Heck some even hypothesize that the whole universe is a Turing machine, but again that only applies to the computability and not the other aspects of universe. @jdixon > And you're the one arguing that the current patent system is applicable. So tell me how to fix it in a way that will get implemented within our current system. I only said that if patents are applicable to other fields then they are equally to software. And I also said that there obviously look to be problems on how patents (particularly for software) are currently been given. Can't say I know much about how the patent system works internally so suggestions from my side for fixing make little sense. For that matter your position of doing away with software patents is more unlikely to "get implemented within our current system" than any other possible suggestion to fix things. > Arguing for an obviously broken system isn't going to convince me straw man |
| hkwint Feb 25, 2011 3:30 AM EDT |
krisum: Tried to explain the 'problem' with pointers: A pointer is not the same thing as what's at the memory address it points to. Or - a street + address is not the same as 'the house at that address'. In the same way "Ceci n'est pas une pipe (R. Margritte)". So the h.264 scheme is math/information and points to / refers math/information. A civil engineering drawing (if that is what it's called?) is math/information and points to matter. Information and matter should not be dealt with in the same way. Because information can be (and lots of times is) 'intangible', even while the 'embodyment' of the information may be tangible. But information is independent of the medium. Information can be copied with almost no additional cost. Information simply isn't and cannot be scarce, as Bob R / Daniel O tought me, and I agree. You can't 'protect' information in the way you can protect matter. Everybody on the world can use the _same_ info without stealing. Matter - on the other hand - is dependent on the medium. It is scarce. It is hard to copy (though of course I follow the great developments of the RepRap Mendel). It's _not_ combinations of atoms which are patented in medicines, as you probably know, because then it's too easy to sidestep by means of adding or changing some unimportant 'groups' of atoms. It's the process of creation, how to deal with the matter which is patented in 'chemical sciences' as far as I learned. Even though I appreciate the idea of treating matter and information in the same way, it's so full of problems I'd say it's not workable - except for bullying small companies and poor programmers. Current software patents clearly reflect these problems. But if I/O of computing system cannot be modeled by "Turing", then the part which cannot be modeled by Turing clearly isn't 'information only', probably deals with matter and would be "open to patent". Such a solution is workable, even though I doubt if patents "all together" are a good thing from an economic point of view. Applying the Turing test though (only patent the part which cannot be modeled by Turing) is workable though. Of course I think transforming / optimizing information should be rewarded (Doh! It's my job), but I think patents are not an efficient way to do so, because they suffer from too many adverse side effects. |
| jdixon Feb 25, 2011 7:37 AM EDT |
krisum, I was talking to Dino, not you. And a simple statement of fact concerning my position can never be a straw man, since it has nothing to do with the other persons argument as such. |
| JaseP Feb 25, 2011 10:37 AM EDT |
I researched the patent system a little. While I haven't committed the process to memory, I have a basic understanding of the current problem... Originally, abstract math & things found in nature could not be patented. That excluded algorithms, and things like DNA. Programs were originally considered not eligible for patent protection, as an algorithm. However, several Supreme Court decisions eroded that original standard. What was left provided little guidance to the USPTO. On top of that, USPTO reviewers, while generally having engineering backgrounds, do not necessarily have backgrounds in the fields they are assigned cases for. To compound the problem, the reviewers have deadlines to keep & the USPTO looses out on (renewal) fees if patents are not granted. Hence, as you can imagine, reviewers are "encouraged" to approve patents by their management. You can imagine the effect on granting questionable or borderline software patents. How can that failure of the system be fixed? The fix could take 3 forms; (1) Congress could remove software patents from eligibility [VERY unlikely, given lobby $$$], (2) The USPTO can be forced [Congress? SCOTUS? Again, unlikely] to reform procedures, or (3) SCOTUS can provide guidance on standards, or weaken the standard of proof in litigation [Given that this is what M$ is asking for in the I4I appeal, this is most likely]. A weakened standard of proof would make patent holders less likely to defend & challengers less likely to settle by paying royalties. In general, this will make cross patent deals more likely as well as reduce the cost of litigation for the "little guy." If you employ a kind of Occam's Razor approach to picking the best solution, a lesser standard of proof is it. |
| dinotrac Feb 25, 2011 11:33 AM EDT |
@JaseP - You have hit, I think, on a couple of important things. First, the SCOTUS has already begun the process of providing guidance for tighter standards, and I expect that to continue. The standard of proof problem is a bit trickier, because the current standard of proof is fine if patents are granted properly and not fine if they aren't. The answer may be some kind of ruling or order that segregates software-only patents granted up to the time of the ruling and removes their presumptive validity with regard to obviousness. IE, if you, as a patent holder, can establish the non-obviousness of your invention, you don't need to jump through any additional hoops to retain the presumption of validity. That would be, ahem, unprecedented, but something really needs to be done. The patent situation WRT software is a big fat mess. |
| JaseP Feb 25, 2011 1:39 PM EDT |
@ Dino, Since gov't workers tend to be a "lazy" bunch (at the expense of generalizing and being overly judgmental), I put little hope in reforming the USPTO. That leaves us with Court intervention. They have made "mistakes" before, that either Congress (Search for the Wiki on the "Piano Roll Blues") or they themselves (Brown v Board of Ed, setting the stage for affirmative action) have fixed. But I hold LITTLE hope for a good decision, since both the Conservative & the Liberals on the Court seem to "kau-tau" to big business interests. I sometimes fear that we are headed for a future like that depicted in "Aliens." I think that if trends are allowed to continue, we'll have mega-corporations controlling us, with the tacit approval of a puppet gov't. |
| krisum Feb 25, 2011 11:53 PM EDT |
@jdixon > krisum, I was talking to Dino, not you. > And a simple statement of fact concerning my position can never be a straw man, since it has nothing to do with the other persons argument as such. Strange, your reply quoted my comment, not Dino's. And "Arguing for an obviously broken system" doesn't look like a position to me rather an expression of that taken by the other person... @hwkint > Matter - on the other hand - is dependent on the medium. It is scarce. Which is besides the point, since matter is not patentable either. > Everybody on the world can use the _same_ info without stealing. The point you are repeatedly missing is what is patented. Patent is not about protecting the building from being stolen at all. A building is not what is patented, or more precisely the matter in the building is not -- its the innovation in its design etc that is. It does not matter if that can be expressed in pure mathematics or is only "information". As Dino has been trying to explain, its the invention that can be patented, not the maths or idea or information ... Pure mathematics is not patentable rather its application to solve a real world problem is (of course, provided it passes the criteria of original innovation, no prior art etc). Whether that be in a software system or other engineering field does not matter. |
| hkwint Feb 26, 2011 8:07 AM EDT |
But - like said - there is no applied maths - or innovation. Because the applied maths / innovation partially is pure math, and partially not. And it's easy to find the border. Innovation in design doesn't refer to pure mathematics, innovation in 'algorithms' does. |
| dinotrac Feb 26, 2011 11:42 AM EDT |
@kirisum - At some point, the only honorable action is to bail out of The Twilight Zone. Good luck to you for as long as you can manage bringing The Good Fight to SerlingVille. |
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