can you imagine if every RFC had been turned into a patent where we would be today?
i think this alone should be telling of how every software patent rides on the goodwill of a culture of open source and standardization that has existed for decades (when true innovation was taking place).
it's complete insanity that patents can be granted for inventions which rely so fundamentally on an infrastructure which could have only been built so successfully - and explicitly - without them.
A substantial part of the work that resulted in the RFCs happened pursuant to federal funding before December 1980. This is significant because prior to December 1980, the enactment of the Bayh-Dole Act, inventions developed in federally funded programs had to be assigned to the government. Therefore, there was little incentive to patent those inventions.
If the developments had happened today, at MIT, BBN, etc, they would be patented.
Are there any studies that do a deep analysis of the impact of the Bayh-Dole Act? Were there any benefits? If not, is this an act that we should lobby to undo?
IANAL, but I'm surprised by the EFF's amicus brief. A large portion of it is an enumeration of the deleterious effects of NPE "trolls", but from my understanding of the case, it's purely about establishing better guidance on what is or isn't patentable under section 101. SCOTUS seems unlikely to be moved by the pain caused by NPE's, when Congress could readily change how patent infringement or licensing works for PE's vs. NPE's if they considered it a serious problem.
Obviously they still got the cert, though not of the particular case they wanted.
I'm interested to hear how some of the much brighter legal minds on hn would handicap this case. My uneducated guess is that the patentability of software will largely survive, but the Court will try to formulate a test designed to exclude claims that would be clearly too abstract were they not "instantiated" on a computer. Something like the Amazon 1-click patent would probably survive, while the Alice patents would not.
Last time the patentability of business methods came around was 2010's Bilski v. Kappos case [0]. Software was discussed as a related matter.
The Supreme Court rejected any specific test as dispositive for patentability. The Court of Appeals for the Federal Circuit [1] had advanced a "machine or transformation" test as the standard for abstraction and unpatentability. That test would have required that a patent specify a specific machine or a transformation of a form or state of matter somehow in order to be sufficiently concrete. It was a vague test that would have allowed almost anything not as awful as Bilsky's application, which essentially claimed various century old hedging strategies whenever implemented on a computer.
The Supreme Court ruled 9-0 that the test was an indicator of abstraction but not definitive. It also ruled 9-0 that Bilsky's patent was garbage.
The patentability of business methods in general was discussed in the opinions. The great John Paul Stevens [2] wrote the dissent in Diamond v. Diehr [3] thirty years prior explaining why and how software patents were terrible and should never be allowed, but only gained four votes. He wrote an opinion explaining again why software patents should not be allowed and gained four votes again in Bilsky in a court where every member but him had been replaced in the interim.
Unfortunately Stevens is retired (it's well earned -- he's 93) and the leading intellectual property expert on the court is now Breyer. Breyer wrote the dissent against effectively permanent copyright terms in Eldred v. Ashcroft. Sotomayor and Ginsberg have also been in the Stevens camp on patentability. New Justice Elena Kagan usually votes with those three. So we can hope for four votes for software freedom once again.
There were also four votes in Bilsky for patenting software, though not with any visible enthusiasm. They were Roberts, Alito, Kennedy, and Thomas.
Finally Scalia refused to join just one opinion and split between the two without addressing the serious ongoing questions of patentable subject matter. So the final tally was 4-1-4.
The CAFC split 5-5 on the Alice [4] case the Supreme Court just decided to hear. The split was similar to the Supreme Court in Bilsky and did not resolve any simmering issues because of the even split.
Note that even the Google and EFF briefs on the Alice case didn't suggest outright abolition of software patents at the CAFC. Justice Stevens may have seemed like a lonely crusader by 2010. It may be that the enemies of our industry have gained so much power in Washington and the patent bar that the best we can hope for is a slow, slow rollback. Certainly there are a lot of people making billions without the trouble of actually building anything who can spend their efforts to keep the racket going. Without the need to make things, they can lobby full time to continue getting rich at the expense of innovators and startups and the public through software patents.
The most likely result here is a 4-1-4 split again, unless a new way to appeal to Scalia can be found. Real progress from the Supreme Court probably requires a new justice; the current pattern indicates that pragmatic Democratic appointee is much more likely to abolish software patents and a movement Republican appointee is most likely to definitively endorse them, but individual justices can always assert their own visions once appointed.
From the tilt of your comment, I assume you think that a properly constituted, wise SCOTUS would rule software patents unconstitutional, or more likely in violation of statute. What's the short case for that? I don't see how my black box with some novel capability becomes un-patent-worthy as soon as I replace the gears and levers inside with a digital computer.
I'm certainly no lawyer, but for me the argument goes like this:
We all agree that math isn't patentable, so let's assume that. As math is not patentable, no mathematical theorem, proof, or function is patentable. All processes that exist entirely in software are representable as a series of mathematical operations. Therefore, software methods are math. As math isn't patentable and software is math, software must also not be patentable.
"All processes that exist entirely in software are representable as a series of mathematical operations. Therefore, software methods are math"
This is where your argument breaks down. This is not logically sound.
Just because something is representable in some other form, does not mean it is that other form.
The interactions of subatomic particles can be represented by a series of feynman diagrams. It does not follow that interactions of subatomic particles are actually feynman diagrams.
If you want more examples, there are plenty of things in physics that are representable as interactions and models that are provably do not occur that way in the physical world :)
instead of "are representable by a series of mathematical operations", you want to say "are in fact, a series of mathematical operations "
Even then, the argument doesn't hold because they aren't patenting processes in software. They are patenting processes (which is valid), particular instances of which happen to be represented in software.
There are good arguments for why software patents should not exist. Most of them deal with abstractness of the processes or claims, not "mathiness".
> It does not follow that interactions of subatomic particles are actually feynman diagrams.
Right, there you can say "ceci n'est pas une pipe" and be right. The problem with this is that software is, literally, information. And all types of information are equivalent. It's true that information requires a carrier (language, memory, hardware, whatever), but that doesn't mean it should be conflated with it. With math, numbers are no different than any other form of precise information.
"We used to think that if we knew one, we knew two, because one and one are two. We are finding that we must learn a great deal more about 'and.'" — Sir Arthur Eddington
I'm probably out of my depth here, but isn't everything math? Pretty much all science boils down to math. All physics and chemistry can be explained (and predicted) in mathematical terms. But I would think some new substance or process would be the "good" kind of patents that most of us want, even if they were ultimately derived from a working knowledge of math. If that isn't all just math, then neither is an instance of a program running on my computer.
Math is information, as is software. Naturally, so are numbers--read about Godel numbering for the beautiful equivalence there.
While many physical things can carry information, I have yet to see a good argument that they are information, though a great many things can be made to carry information in one way or another.
Granted, I suppose there are some who think that we might all live inside a computer simulation, but let's not go there.
I see what you mean, but I'm not necessarily moved by it. You can choose to describe software as nothing but information. Or you could describe software as it's own entity, which can carry or store information.
Then you're abandoning the argument that "everything is math" and just claiming that software isn't math either. That's a whole different claim.
It's also a lot harder (perhaps provably impossible) to defend. There is provably nothing you can do in software that you can't do, much more slowly, with pencil and paper. The only way software can be anything other than math and calculation is to define it as something other than software, and what does that actually buy you? If we make that which you define as software patentable, but make what is commonly known to everyone else as software unpatentable, is that a satisfactory outcome to you?
I'm not arguing as a means to an end, I would prefer to get rid of software patents. I can't really parse your last question, since we're talking about the same software, but keeping the status quo would be unsatisfactory to me.
I just think it's somewhat arbitrary to say that software is nothing but information. Yes, you can state that, and we could all agree to honor that distinction as such, but I think there's nothing a priori about it.
Sure, you could work out software problems on a chalkboard, but I would say doing so is different than creating a piece of software that does the same thing... in the same way that a story that is told verbally from one person to another (and not stored say, via video) is different than a book.
> I just think it's somewhat arbitrary to say that software is nothing but information.
As opposed to what? It is nothing but information. It has no corporeal existence. Even if you put it on a disk or a piece of paper, encoding information into a medium doesn't make it not information (and shouldn't cause it to become patentable when it wouldn't be otherwise) any more than it would for other information like a song or a photograph or English text.
> Sure, you could work out software problems on a chalkboard, but I would say doing so is different than creating a piece of software that does the same thing... in the same way that a story that is told verbally from one person to another (and not stored say, via video) is different than a book.
OK, so one exists in your mind and the other exists on paper. You can draw that distinction if you like, but what is it supposed to change? You can't patent the verbally passed down story or the book. And I think the attempt really exposes the charade of software patent claims that attempt to avoid unpatentability by claiming the physical encoding: Can you really patent the information in a book just by claiming it as a physical object encoded with that information? It seems ridiculous. But that's apparently how they justify software patents.
What would software that contains no information look like? If you can't separate the two (and I don't believe you can), the "separation" between them is merely rhetorical.
I'm just saying that defining software as information (and therefore nothing but math) seems arbitrary to me. Hell, I'm not even saying I necessarily disagree with it. But I think it's not the only way to look at software, and so not a terribly convincing argument to me as far as SCOTUS is concerned, or the end-goal we all want of significant patent reform (at least in the realm of software).
You could define information as state or data, and software as that which acts upon that state or information. You wouldn't (or at least I wouldn't) describe the data in a cookie as software. That's just a piece of information. The browser that handles it is a piece of software. Same with http packets. That's data. Accepting dynamic bits of data and acting upon them accordingly would then be software. Or a database is software, but the data it contains is information. You could counter-argue that the cookie or the packet are not external to the system... that's it's all part of the same piece of software. And I frankly couldn't refute that, because it's just how we somewhat arbitrarily choose to define and parse our understanding of the system.
In answer to your question, software that contains no information (at least looking at it this way) would be something that runs without ever storing, emitting, or accepting dynamic bits of information.
You seem to be separating the activity of executing a program from the program itself. There's no reason a program cannot be constructed which takes arbitrary data and we feed data to programs to get other programs. So what's "mere data" in one system might bbbe executed by another.
While a recipe card might not constitute a "program" in most contexts, if you construct a cooking robot, the same data is now magically software because the robot could use it to cook. So the line you are attempting to draw between software and data is merely that of the limitations of what the system can process.
And all programs are ultimately processed as data by the instruction loop within the CPU. For example, I can construct the "non data" program of 0x20FE (unconditional branch to its own start on the 86HC11, i.e. 10 GOTO 10). The CPU unconditionally fetches the instruction at the instruction pointer, then executes it. In this case, it increments the instruction pointer by 2 while reading it, then executes and decrements the instruction pointer by 2, endlessly looping over the same data.
Everything is described by math. There is a difference between the calculation and the thing. You don't get any energy by using E=MC^2 to calculate the amount of energy contained in a pound of Uranium. You do get energy if you build a fission reactor that will actually convert the mass into energy.
There are so many conclusive arguments against software patents that the result is overdetermined. Nevertheless, lining the pockets of the patent bar is likely to overcome any quality of argument as long as computer programmers have even less Washington influence than illegal alien terrorists.
I'll give a few arguments, but first let's consider yours. Black boxes are never patentable. The concept of patents is that you reveal exactly how your process works and you get a limited monopoly on the totally new and non-obvious bits of your process for the public benefit. It always matters how the process works inside. That's the theory anyway; the patent bar loves to rob the public by cheating the bargain.
1. Computer programmers are overwhelmingly against software patents. For the first time in my life I see educated people advocating the abolition of the entire patent system, even at the cost of life saving drugs, just to get patents out of computer software (John Siracusa, to cite a public personality, but there are many, many more who agree). Programmers hate patents in their industry by something like ten or twenty to one.
2. Software patents are harmful to innovation. They created almost all the modern patent trolling crisis. They shutdown startups and innovative projects and block open source. They promote vendor lock-in and empower giants over small companies with new ideas.
3. Software is math and both math and mental processes are SCOTUS identified ineligible subject matter.
4. The quality of software patents we see is uniformly bad. None of Apple's, Motorola's, Oracle's, Samsung's, or Microsoft's recent patents in litigation or threats thereof have contributed anything to the public. The billion dollar patents from Eolas and NTP were pure garbage. None of the troll patents we hear about all the time ever contributed anything to our art or even constitute inventions at all. Bilsky, Ultramercial, and Alice are all ludicrously abusive. Whole teams of programmers could work for decades searching without finding a single plausibly valid and useful patent in their field.
5. When we bought our computers, ever since the first general purpose computers in the 1940s, we have done so expecting to run programs on them. Using a machine for its expected and customary use is not subject to any patents beyond the patents on the machine itself. Running any program at all is the expected use of a computer, at least for programmers who write their own programs, so any program running on a computer is automatically in the prior art. In fact, we already have a list of every program our computers are expected to run and it includes every program any computer can run. We haven't printed the list out (not enough paper), but we know exactly how to produce any part of the list for your pleasure on demand.
Now the patent bar wants to tell us that programs we expected to run, that are the conventional use of our machines, and that have been on our list since the 1940s are their brilliant inventions and they are going to prohibit us from running them. No thanks.
Talking about he influence of the patent bar is utterly ridiculous. The plaintiffs bar is way bigger and has more clout, but that doesn't stop the Supreme Court from paring back the scope of class actions.
Only in the HN bubble is the argument against patents "conclusive." What Congress sees is people in the Internet tech sector complaining about patents, then people at a Oracle and Microsoft and Apple defending them, along with engineers at dozens of key American companies in aerospace, medicine, agriculture, etc.
The Supreme Court is required to give effect to Congressional intent in the patent act. The language of the patent act days that nearly any subject matter is potentially patentable. Unlike commenters on HN, they must approach software patents in a way that gives effect to that principle.
" lining the pockets of the patent bar is likely to overcome any quality of argument as long as computer programmers have even less Washington influence than illegal alien terrorists."
1. The patent bar[1] itself has little to no influence in Washington. Nobody cares what they think. Congress cares about what the companies some of these folks work for think, but AIPLA, for example, has never had any real lobbying impact. They've complained about every rule change, every bill, every everything that has ever "hurt" their members. As far as i'm aware, there has never been any changes that have resulted from their comments.
2. The influence of computer programmers in Washington is mostly due to the fact that they spend time posting here instead of doing anything about anything. This is an entirely self inflicted wound, and the sooner programmers stop convincing themselves this isn't true, the better off they will be. Watching this happen without fail since 1997 is one of the reasons i became a lawyer.
I would wager a large amount of money if even 1% of the local user groups of programmers of various sorts that still exist, each appointed a representative, and had that person go to their local congressperson/senator, and said "I represent a concerned group of local small business people and programmers, and software patents are destroying our ability to make a living and causing us to lose jobs", that software patents would have been a solved problems years ago.
[1] I'm also not sure why you keep saying "the patent bar".
The patent bar itself is not of one mind, and there is no real, single organized patent bar that does anything, because the patent bar are those attorneys and agents licensed to practice before the PTO, and since being a lawyer is not a requirement, they come from a variety of walks of life, not just a bunch of attorneys. The actual patent bar (IE as run by the PTO) offers literally no opinions on anything, and certainly does not lobby, just like the bar of the 9th circuit court of appeals doesn't lobby.
There are a number of outside organized collections of patent attorneys, like AIPLA, but as mentioned, none are really "the patent bar". There is no single mind among these folks, either, Most of the inside and outside litigators I have met in the corporate realm rail against software patents. So even "the patent bar" is not consistent here, it's more like you have the criminal defense lawyers vs the prosecutors, rather than a single "criminal law bar".
> ... and said "I represent a concerned group of local small business people and programmers, and software patents are destroying our ability to make a living and causing us to lose jobs", that software patents would have been a solved problems years ago.
That is very true, but my very strong hunch is that this hasn't happened because software patents are not really a problem -- at least not anymore. As I've said elsewhere, the vast majority of programmers barely even know what a patent is, and tons more consider them a good thing. Those are also overwhelmingly the people that don't spend time posting on places like this.
Another indirect piece of evidence is the current uproar in Congress about patent trolls: A handful of trolls (that I'm aware of) -- like the WiFi guys, the scan-to-email guys, the vehicle-tracking guys -- send out demand letters to mom & pop businesses, and suddenly Congress is up in arms. It's possible, but I find it unlikely that, if there are so many companies involved in software patent litigation, there are not even a few that would reach out to their representatives.
Black boxes are never patentable. The concept of patents is that you reveal exactly how your process works and you get a limited monopoly on the totally new and non-obvious bits of your process for the public benefit. It always matters how the process works inside.
I shouldn't have used the term "black box". Assume it's a pair of crystal clear boxes, and inside one is a beautiful, novel arrangement of gears and camshafts which I have painstakingly documented in patent A, and inside the other is a run-of-the-mill laptop, running software that I have painstakingly documented in patent B.
Both devices perform the same function. It's something no device has ever done before, and has substantial practical uses. Let's say it can accurately predict when your in-laws will next visit.
What makes patent A valid while patent B is "harmful to innovation"? Or are they both "software patents"?
I'll let alone the fact that your definition of "software patents" is flawed. Let me address your other points.
> There are so many conclusive arguments against software patents that the result is overdetermined.
Or, also known as "being in an echo chamber".
> Black boxes are never patentable.
The concepts of a Person of Ordinary Skill and Doctrine of Equivalents is not "black boxes". Are you saying all the so-called "bad" patents you've seen were things you couldn't implement by reading them?
>1. Computer programmers are overwhelmingly against software patents.
Echo chamber. The vast majority of developers barely know what a patent is. Many others think they're a point of pride, and that's where all these software patents are coming from. The rest are just really vocal.
> For the first time in my life I see educated people advocating the abolition of the entire patent system, even at the cost of life saving drugs, just to get patents out of computer software
"Educated" does not mean "well-informed", and it does not mean they know anything about patents. Economists are still having trouble quantifying the benefits and harms of patents, let alone software patents, so I'm guessing your "educated people" are basing their opinions on personal biases rather than evidence.
> Programmers hate patents in their industry by something like ten or twenty to one.
Wow, this echo chamber seems to have reached resonance. Here's a statistic closer to the truth: 99% of people complaining about patents don't know jack about how patents work and simply regurgitate what they tech media tells them, and tech media is not only clueless, it's deliberately misleading.
> 2. Software patents are harmful to innovation. They created almost all the modern patent trolling crisis. They shutdown startups and innovative projects and block open source.
Studies [1, 2], albeit with only publicly available data, have found no empirical evidence of a "modern patent trolling crisis", and I have heard of more small companies being ripped off by big guys (see i4i) than being shut down by patent trolls. On the other hand, I can list some studies that find "software" patents are no worse than other types of patents [3, 4, 5], and can actually be pretty useful for startups. [6, 7].
> 3. Software is math and both math and mental processes are SCOTUS identified ineligible subject matter.
"Machines are made of metals which occur in nature, which are SCOTUS identified ineligible subject matter."
> 4. The quality of software patents we see is uniformly bad...
I'm genuinely curious: how do you judge the quality of a patent?
> 5. When we bought our computers, ever since the first general purpose computers in the 1940s, we have done so expecting to run programs on them. Using a machine for its expected and customary use is not subject to any patents beyond the patents on the machine itself.
"When we first mined metals, we have done so expecting to make things out of them. Using a metal for its expected and customary use is not subject to patents beyond the patents on the metal itself."
There are plenty of those, including, say, IP Watchdog. Yes, some of us have been known to hang out in very pro-patent echo chambers as well.
> The concepts of a Person of Ordinary Skill and Doctrine of Equivalents is not "black boxes".
Complete non sequitur. A black box is a device where the function is known, but not its workings. If something is a black box, it's hard to see how it would satisfy the 'enablement' standard. Well, unless it's black box software, then it's just fine! Judges apparently think that you just tell the computer what to do and it requires no undue experimentation. So you just need someone to come up with the brilliant idea to patent software that simulates the human brain and achieves sentience (or at least passes the Turing test) and everything thereafter is just a matter of typing it in once this disclosed. Yes really, see [1].
> Studies [1, 2], albeit with only publicly available data, have found no empirical evidence of a "modern patent trolling crisis"
They apparently haven't read the newspaper, either, wherein we find that every major tech company is apparently a thief, in spite of the fact that nobody actually reads patents (we're all warned not to, treble damages and all that). Interestingly, widespread reinvention of a patent is not considered empirical proof of obviousness, rather it proves that the idea was really valuable and the patent holder deserves lots of money for discovering that, say, cell phone computers can do email just as well as other computers. Also, we'd best not look at the steadily increasing number of patent cases, nor all of the goings on in Marshall, TX.
> "Machines are made of metals which occur in nature, which are SCOTUS identified ineligible subject matter."
You're confusing "contains" with "is" here. I've also seen patent lawyers try to do a reductio ad absurdam saying that software is hardware (read some of the Patently O comments...). Apparently they don't realize that software is information and that numbers are no different than any other form of information. And, as with your broken logic, we can say that hardware contains information [software], but it's quite ridiculous to say that hardware is information.
> I'm genuinely curious: how do you judge the quality of a patent?
By how much of it is actually new. If someone comes up with a new computing device, some idiot will try to patent having it do email, web surfing and everything else we already know that computers can do.
> When we first mined metals, we have done so expecting to make things out of them. Using a metal for its expected and customary use is not subject to patents beyond the patents on the metal itself."
We can actually enumerate all of the programs that can go on a particular computer. It's the set of integers from zero to the largest number that would fit in memory (most of these are not useful, however). I don't believe you can do that with all things that could be made of metal, moreover the metal's properties are altered in certain combinations (e.g. amalgams) whereas the computer's properties are not altered by the information on it--the computer is still performing an instruction loop over the data it contains.
[1] This is a real howler for programmers, found quoted on Patently O: Fonar Corp. v. General Electric Co., 107 F.3d 1543, 1549, 41 USPQ2d 1801, 1805 (Fed. Cir. 1997) (“As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed. * * * Thus, flow charts or source code listings are not a requirement for adequately disclosing the functions of software.”).
Glad to finally see someone who looks at the other side of things as well! I generally avoid IPWatchDog for the same reason reasons as Groklaw: too shrill, snarky and narrow-minded.
> Judges apparently think that you just tell the computer what to do and it requires no undue experimentation.
Yes, Fonar v GE is a ridiculous one when generalized, and I do wholeheartedly agree that the "enablement" requirement is very weak currently and a ton of patents don't meet it in my eyes. Take the PageRank patent, for one, often cited as an example of a good patent. It is very lacking in implementation details, so much so that a blogger set out to implement it and ended up with a bunch of posts complaining about all the undue experimentation he had to do.
But take the average case: how much undue experimentation is required for your average patent? How much undue fiddling would be required to implement, say, Twitter's pull-to-refresh, or the iPhone rubber banding patent, or the Google doodle patent, or the MS FAT patent? I think my point still stands: how many patents couldn't you implement just by reading them? (Also, keep in mind triviality of implementation is very different from non-obviousness.)
> They apparently haven't read the newspaper...
Like I said, tech media is not only clueless, it's deliberately misleading. Newspapers are merely anecdata, and worse, potentially biased anecdata [1]. Why rely on that when we have studies that tell you the data they looked at so you can find the flaws in them rather than accepting unsubstantiated, rageview-bait at face value?
> Also, we'd best not look at the steadily increasing number of patent cases, nor all of the goings on in Marshall, TX.
Actually, studies [2, 3, 4] did look at it and found no real increase. [2, 3] found that the AIA joinder rules, where previously a single case could have multiple defendants now must be individual cases, caused an inflation in lawsuits with no statistically significant increase in the number of litigants involved. [4] actually finds EDT is better than others with respect to plaintiff win-rates.
> Interestingly, widespread reinvention of a patent is not considered empirical proof of obviousness
A few points here, since this turns up often:
1. Reinvention many years later is not proof of obviousness. It simply means an idea has permeated widely enough to become obvious to others. A big reason the way US (and other) patent offices do examination, where they must support a rejection with enough prior art references, is to avoid hindsight bias.
2. There is very little "widespread" re-invention going on; what is happening is one product/project/company re-invents something(s) and that gets widely used. (Think Android, or the iOS SDK.)
3. Simultaneous independent invention could be considered proof of obviousness... Or it could be proof that two or more really smart people were working on the same problem at the same time, which has happened in "patent races". But at least at the PTO it happened so rarely that they changed to first-to-file.
> You're confusing "contains" with "is" here.
No, you're confusing both, the nature of software and the inventions being claimed. The software is what makes a machine do useful things, and those useful things are the inventions that are patentable.
> I've also seen patent lawyers try to do a reductio ad absurdam saying that software is hardware (read some of the Patently O comments…).
What they mean is, it's "equivalent", which is perfectly accurate. Also, please explain how software can exist without hardware. What's in your mind is steps to implement or recreate software, but it cannot exist without hardware outside your mind. Just like any other invention.
> Apparently they don't realize that software is information ...
How is "Software is information" different from "machines are metal"? Doesn't seem to be my logic that's broken.
> By how much of it is actually new.
Sure, but how do you determine that a patent covers something actually new?
> We can actually enumerate all of the programs that can go on a particular computer. It's the set of integers from zero to the largest number that would fit in memory (most of these are not useful, however).
I don't see the point, but I can trivially debunk this:
1) The order in which you "interpret" or execute those bytes gives you a completely different program. So if you can fit in 1GB in a high-end smartphone, the number of all possible programs approaches factorial(1e9). That's a number about 8 billion digits long, if Google serves correctly.
2) Now consider that you fill that memory up with programs that generate other programs, or variations of themselves. Something like, say, Conway's game of life. I cannot begin to calculate how many different programs that could generate.
These are absolutely humongous numbers, no different from the number of ways physical objects can be arranged. Now consider that only an infinitesimally small part of them are actually useful. I find that an argument to the patentability of software than against it.
> ... whereas the computer's properties are not altered by the information on it--the computer is still performing an instruction loop over the data it contains.
The computer's properties are not altered?!? It goes from being a heap of semiconductors to actually doing something! How is that different from a machine going from a heap of components to an useful implement?
And each program makes it do something different so each program changes the purposes of the computer, and so becomes a different tool! A simple thought exercise: you're on Youtube. Someone asks you what you're doing. Is your answer:
a) "I'm using the computer"
b) "I'm watching videos"
Interesting isn't it? Now repeat the exercise with games, programming, document editing. And then explain to me how running different software on the same machine does not change its function.
> Yes, Fonar v GE is a ridiculous one when generalized, and I do wholeheartedly agree that the "enablement" requirement is very weak currently and a ton of patents don't meet it in my eyes. Take the PageRank patent, for one, often cited as an example of a good patent. It is very lacking in implementation details, so much so that a blogger set out to implement it and ended up with a bunch of posts complaining about all the undue experimentation he had to do.
Glad to hear it.
> [4] actually finds EDT is better than others with respect to plaintiff win-rates.
I might be missing something, but I don't see it taking the really high settlement rate into account. If you include those as mostly losses, well yes, Northern California still sucks as well and the overall win rate sucks.
> There is very little "widespread" re-invention going on
Using SSL with RC4, scan to email, pick any "we own the internet" patent, really.
> The order in which you "interpret" or execute those bytes gives you a completely different program.
No, the hardware performs an instruction loop no matter what is in memory or the registers (unless you break it).
> Now consider that you fill that memory up with programs that generate other programs, or variations of themselves. Something like, say, Conway's game of life. I cannot begin to calculate how many different programs that could generate.
None of which fit into the device (you've already used up all memory, remember?). It's also a finite number. You're thinking of a Turing Machine with infinite memory (wish we had one, but we don't). There are functions with finite values that are not computable incidentally (the Busy Beaver function, which incidentally is related to your idea, is one such function). Yes, there are more programs than fit into memory for any finite amount. Sadly, we do not have infinite memory. Yes, you can increase the number of possible programs by adding memory (this should be no surprise to anyone who has ever used a computer and needed more space to install X). Every program (equivalently, every mathematical statement) can be identified with a number. Even this text is nothing more than a very long number. I believe I already mentioned Godel's work.
> no different from the number of ways physical objects can be arranged.
That's infinite, though (as far as physics knows). Anything you can fit into memory will be finite (though it can be extremely large, as you've noticed). One is exhaustible and enumerable, the other is not. The computer is designed to let you put any value whatsoever into its memory. We do not have a general atom-arranger that can make any construct out of matter. Though how I wish we did have one of those from Star Trek! ... I'm sure you'd then have people patent making X with the synthesizer... for every X that already exists. Which is about where we are with the computer, no? That's why we think that new synthesizers (computers) should get patents but not every trivial, already existing X that you can imagine putting on there. At least when it's a new X we can respect it a bit, but when you're doing old X + computer, it gets silly fast, because many, many people can figure out how to do old X + computer ... but the lawyers think it patentable for some reason.
> The computer's properties are not altered?!? It goes from being a heap of semiconductors to actually doing something! How is that different from a machine going from a heap of components to an useful implement?
It goes from executing an instruction loop on no data... executing an instruction loop on data. Yes, the instruction loop was a very fundamental, useful idea, precisely because it can compute any algorithm given appropriate input. The computer is unlike any other invention precisely because we found such a general mathematical construct to put behind it. But the data is just a large number. Yes, printing a few GB of data as a decimal number would run you out of paper, but there's absolutely no reason we couldn't do it.
The EFF said that the Federal court had been influenced by possible negative consequences of mass invalidation of patents [1]: Warning of a 'free fall of the patent system,' Judge Moore wrote: 'Let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.'
Clearly they are concerned to reduce the force of this kind of argument on SCOTUS.
I doubt they would even go that far. It would take a very strong overpowering argument why software is an abstract idea, one that has not been argued before in the many cases that touched on software patents. I think they will make a modest attempt to make things more clear cut, but given the history of such cases in lower courts, there is a decent possibility that they will make it more cloudy in the attempt. And given the uncertainty and the absence of a strong new argument, the natural lean is not to upset the status quo of the thousands of issued software patents. So much ado about nothing in the end.
The actual link above links to a number of amicus briefs urging the court to grant (or not grant) review, and would be good reading to understand the issues in the case.
The intellectual property laws generally reject this "sweat of the brow" doctrine.[1] The idea is, that someone should be able to get a patent for something that results from a flash of insight rather than years of expensive R&D.
I think rejection of this doctrine is a grave mistake as applied to patents. Essentially, it fundamentally misunderstands the nature of innovation in the 21st century. A new invention does not happen because someone has a clever idea one day while mulling over a problem during lunch. That may have been true in the early 20th century and earlier, but it's not true today. Today, invention is driven by research labs staffed by expensive PhDs using even more expensive capital equipment. The purpose of patents in the 21st century is to protect and be able to transact in the results of this capital-intensive R&D.
E.g. Adonit has a new iPad stylus that's 1.9 mm versus the 6 mm typical for iPad styluses (https://adonit.net/jot/script). The capacitive touch matrix on the iPad normally cannot pick up on such a narrow point, so they use some active sensing technology that relies on measuring the electronic field emitted by the capacitive matrix and feeding that back to special software over Bluetooth. For this they have a patent. This was not a flash of insight. This was the result of measuring EM field strength with expensive equipment, buying lots of iPads to test product variability, doing lots of experiments and iterating the design. The purpose of a patent here is to keep companies from free-riding on all that R&D, not to reward anyone for a flash of insight.
By rejecting sweat of the brow doctrine in the context of patents, patent law has become divorced from its underlying economic justification: the prevention of free-riding. The magnitude of the disincentive created by free-riding depends very much on the capital investment that went into the invention.
[1] Sweat of the brow doctrine is more typically used in the context of copyright, but is applicable to a degree for patents as well. The doctrine has opposite effects in the two contexts. In copyright, it has been used to reject copyright-ability for things like phone books that might take work to compile, but aren't "original works." However in patents, it has been used to justify granting patents for "inventions" that weren't a lot of work to invent.
> This was not a flash of insight. This was the result of measuring EM field strength with expensive equipment, buying lots of iPads to test product variability, doing lots of experiments and iterating the design.
So what do you think is going to happen if someone else takes the same flash of insight ("use active sensing technology to achieve a smaller stylus"), puts in their own brow sweat to work out the details, and deploys a competing product? Adonit isn't going to sue for infringement, right? And if they do, they won't win. Right?
I'm talking about a hypothetical change to the patent system, so your question about what would happen under the current system is pointless.
As for what should happen, then under my proposal, proof of independent invention should be a defense to infringement. This falls out of the first principles (the economic concept of free-riding). The purpose of patent protection, economically, is to protect some $(big number) capital R&D investment from a competitor that trivially copies it for $(small number). If, instead of trivially copying it for $(small number), the competitor instead goes to the trouble of engaging in its own R&D for $(big number), then there is no free-riding and no reason to find infringement.
Your proposal sounds more like copyright-for-ideas than patents. In such a system, why would you need to apply for a patent? Samsung copied your phone design? Sue them for that, holistically, rather than finding some arbitrary set of "inventions" that they infringed on. It sounds like the jurors mostly looked at things this way, anyway, when deciding who's morally right. Zynga probably wouldn't like the change, though.
Useful articles do not fall under copyright, except for the separable portion that can be considered purely aesthetic.
E.g. if P&W disassembles a Rolls-Royce engine, and copies the shape of the turbine blades (which are the result of very expensive R&D), Rolls-Royce can't assert copyright because the shape of turbine blades is functional, not aesthetic.
Now you're the one who's ignored that this was hypothetical.
My point was that if we go ahead with your proposal, such that patent protection becomes about preventing copying work rather than (possibly accidentally) duplicating an idea, then what's the point of filing for patents? It could work just like copyright does now.
Rayiner: I can't respond to your next post for a while, but you didn't address the main point I was attempting to make in comparison to copyright: You don't need to file. There would be rules that you can't significantly copy someone else's hard work. If someone copies your hard work, it will be evident from the facts, just as it is evident with copyright violations, and you can sue them. No patent required.
It wouldn't work just like copyright does, even if you extended copyright to functional designs.
Consider how patents and copyrights interact with respect to software. Say you make a new audio encoder leveraging some psycho-acoustic property. Copyright protects the literal source code only. It doesn't prevent someone from doing a "clean room" reimplementation of your software, and in the process taking advantage of all of the expensive testing you did to validate your psycho-acoustic model.
Patents as they exist today might apply to any encoder leveraging that psycho-acoustic property. I.e. a competitor couldn't hold up the fact that it performed independent testing to build its own psycho-acoustic model as a defense to patent infringement.
My proposal falls in-between. You can prevent someone from reverse-engineering your program to copy the essential details, which is the fruit of your expensive R&D. However, you can't prevent someone from using the same basic idea when they go to the expense of deriving those essential details for themselves from the basic idea. What patents as they exist now protect, and what my proposal explicitly wouldn't, is the "flash of insight." The realization that multiple people may have in response to some journal paper that some newly-described psycho-acoustic phenomenon may be used to build better audio encoders.
Implicit in my characterization "copyright for ideas" is that this proposal will somehow extend copyright, as it's currently understood, to cover ideas. I understand your point that copyright as it exists today does not cover more abstract ideas.
The main difference I was attempting to emphasize between copyrights and patents is that copyrights are automatic whereas patents must be filed and granted. And my point is that your proposal, which seems quite reasonable to me, would seem to work just fine with the copyright model of automatic rights: no patent filing required. And for that matter, the distinction between elaborate designs, which cannot be copied, and "flashes of insight", which can, looks a lot to me like a principle of fair use.
I agree that patents should be unique and novel (and that many patents are issued that are not novel). I disagree on the idea that innovation can only happen through expensive R&D and by experts in labs. Such innovation is useful and should be done and protected, but seems to be more evolutionary than revolutionary. Also, will companies take the time to do the R&D if they can't patent the idea and concept first?
Its important to protect more revolutionary ideas that may be developed by someone in a garage or starting a small company. Patents are supposed to also protect small businesses and individuals with great ideas that don't have the type of budgets you are talking about.
I think in practice it's exactly the opposite. Just look at Silicon Valley. Who is doing the really revolutionary stuff? Self driving cars are Google + the DOD. Space X has burned through about $1 billion in capital, with half of that coming from NASA. Tesla is burning $50-70m per quarter on R&D.
Small companies certainly invent new things, but even then there is usually a lot of money involved, from government contracts, university spin-offs, etc. The wireless tech company where I used to work started out in a basement, and has probably spent $10m+ over the last decade developing its technology (bootstrapped with DARPA contracts).
This is not to say that small-time inventors don't have revolutionary ideas. But in practice, the stuff that happens in a garage isn't inventive but rather application of well-understood technology.
> By rejecting sweat of the brow doctrine in the context of patents, patent law has become divorced from its underlying economic justification: the prevention of free-riding. The magnitude of the disincentive created by free-riding depends very much on the capital investment that went into the invention.
Odd, I had always understood the underlying justification to be the establishment of free-riding. In return for a temporary monopoly, everyone would be able to use the same superior technique.
I agree that allowing independent invention to be a defense to patent infringement would solve almost all of the problems we see with software patents. But it seems to have some different trouble.
If you allow competitors to use the invention if they pay the cost of duplicating the research, you cap the value of the patent at the cost of doing the research rather than the value of the result in the market, because anything more than that and you cause competitors to [band together to] duplicate the research rather than paying you for a license. In general this is a good thing because monopoly rents are bad, and it allows the original party to recover their costs by licensing without allowing inefficient monopoly rents in excess of the original cost. The trouble seems to be that it doesn't provide an incentive to actually be the one who does the original research, because if the research pans out then you can only recover up to the cost of duplicating the research, but meanwhile you have to take the risk of the research not finding a solution.
The other trouble is, how do you prove or disprove independent invention after something is published?
I'm adamantly against software patents, however, when it comes to chemistry patents, I know it's not a rubber stamp process. It can take a couple years to get a patent, and lots of patents are rejected. A lot of the process involves the examiner stripping out claims that are invalid (the parties seeking the patents generally want them to be broader than they really should be).
As holder of a US patent on a purely software "invention" (aka, some game I wrote) I can categorically state that the only way it could have been granted was that it was rubber stamped because it is just a lot of talk about the algorithms I wrote, executed on a portable game system.
CEO loved the idea of getting a patent because he thought it would make us look impressive and it would defend us in advance if someone else made a similar thing and tried to attack us with their own BS patent.
Makes me sad when i consider the comparison with my grandfather's multiple rounds of back and forth with the PTO fighting to finally get a patent on a mechanical device. Comparitively yes, they rubber stamp software patents because they clearly dont understand the art. They kind of understand more traditional (aka real) inventions.
I think a bigger problem is that a well-funded entity can keep resubmitting rejected patent applications for re-examination. I think there needs to be a limit on how many "appeals" you can get.
From what I have heard, and this might be wrong since I am no expert on the matter, re-examinations creates a perverse incentive for patent-examiners to accept patents since their job-performance is rated on how many patents they process.
i think this alone should be telling of how every software patent rides on the goodwill of a culture of open source and standardization that has existed for decades (when true innovation was taking place).
it's complete insanity that patents can be granted for inventions which rely so fundamentally on an infrastructure which could have only been built so successfully - and explicitly - without them.