LCA: Addressing the failure of open source [LWN.net]

Software is The Glass Bead Game

Posted Jan 19, 2012 21:31 UTC (Thu) by khim (subscriber, #9252) [Link]

Software exist in entirely predictable world. If you can imagine and code something - it'll work exactly like manuals describe.

Hardware exist in real world. No matter what you'll invent you'll need to eventually build the thing and test it.

The more testing you need the more patents make sense. Pharmacy, in particular requires enormous and extremely expensive testing, but UI patents don't need any testing at all: just draw few diagrams and off you go to the patent office (if you'll need to design something sellable it's diferent story: you need to carefully select sizes, effects speed, etc - but this is not what typical UI patents cover at all).

Software is The Glass Bead Game

Posted Jan 19, 2012 21:49 UTC (Thu) by daglwn (subscriber, #65432) [Link]

But if the argument is that software isn't patentable because it's math, then the same holds for hardware, at least for the logic design. Yes, implementation details can be patented under this view (novel cooling architectures, for example) but the underlying machine model should not be.

Software is The Glass Bead Game

Posted Jan 19, 2012 22:32 UTC (Thu) by nybble41 (subscriber, #55106) [Link]

The logic design of a piece of hardware is also math, and should not be patentable for the same reasons.

Now, if you were to design a novel hardware *component* for use in actual, physical circuits, that would be be an entirely different matter. In that case you've invented a novel way to use the physical properties of the universe toward a specific goal. If anything justifies a patent[1], that would. To get to this point you have to reduce your abstract ideas to practice, i.e. actually build something, or at least show that in principle the component could be constructed from real materials.

The problem with software patents in particular is that once you remove the part you didn't actually invent (the general-purpose computer), you're left with something which doesn't qualify for a patent (the software algorithm), which is pure math, which--for reasons which should be obvious--is an explicitly excluded subject.

If you were to invent a device specifically for the purpose of evaluating the algorithm you're trying to patent, you could probably get a patent on that specific device. However, that would be equivalent--putting aside the fact that the hard work was done long ago by someone else--to patenting a specific type of general-purpose computer running *specific code*. Just as you can accomplish the same goal (e.g. evaluating a given algorithm) in a *different way* without violating a normal, non-computer-related patent, even minor changes to the architecture of the computer or the low-level binary code should get around the computer+software patent. Real software patents, however, are far broader than their non-software equivalents, covering all possible ways to evaluate the patented algorithm on a general-purpose computer, not just a specific reduction of the algorithm to practice.

[1] However, nothing can justify artificial, aggression-based monopolies, so there is no real difference so far as natural law and just property rights are concerned.

Software is The Glass Bead Game

Posted Jan 20, 2012 1:14 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

I find that most of what people call hardware and software is for the purposes of that discussion indistinguishable. I try to use those two words sparingly. I think maybe a lot of people don't understand what "hardware" engineering is like. You don't tinker with matter; you work at a keyboard. For the purposes of testing your invention, you use an existing, not very interesting, process to convert your software to something physical.

Drugs were mentioned above as patent-worthy because they are hardware. They're software. The part where you express a drug as a pill and put it in someone's mouth is a fairly small part of the invention process; if we could download a drug into a test subject through the retina, the drug wouldn't be much less costly to invent.

There are two fundamental functions of patents: 1) provide a way for an inventor to recover the costs of invention; and 2) provide an incentive for an inventor to disclose his invention. I don't see that hardware vs software or algorithm vs machine has any bearing on those purposes.

There already exists an obviousness test for patentability which ought to cover most of the objectionable software patents. It just doesn't seem to be implemented very well.

Software is The Glass Bead Game

Posted Jan 20, 2012 2:52 UTC (Fri) by nybble41 (subscriber, #55106) [Link]

> I find that most of what people call hardware and software is for the purposes of that discussion indistinguishable.

Hardware and software are quite easily distinguishable. Hardware is specific physical matter arranged into a pattern to accomplish some goal. Software is an abstract concept, which can be embodied as a pattern in matter but is not tied to any specific matter or form of representation. To use an example any child can comprehend, wooden blocks with the letters "A", "B", and "C" carved into them are hardware. The letters "A", "B", and "C" themselves are software.

> I think maybe a lot of people don't understand what "hardware" engineering is like. You don't tinker with matter; you work at a keyboard. For the purposes of testing your invention, you use an existing, not very interesting, process to convert your software to something physical.

Indeed, and any hardware produced by that method should be, in my opinion, no more patentable than software. This sort of work, while undoubtedly useful, does not advance the state of the "useful arts" patents are meant to encourage. The result is merely a new device, not a new technique.

> Drugs were mentioned above as patent-worthy because they are hardware. They're software. The part where you express a drug as a pill and put it in someone's mouth is a fairly small part of the invention process; if we could download a drug into a test subject through the retina, the drug wouldn't be much less costly to invent.

As an outsider, it seems to me that one usually doesn't patent the drug itself, but rather the process of manufacturing or administering it, or perhaps of testing for conditions where the drug is applicable. As a rule, you're not supposed to be able to patent the actual chemical structure, for much the same reasons that you're not supposed to be able to patent abstract math. Of course, alongside software, pharmaceuticals are another politically-charged area where the normal patent rules have been bent and twisted almost beyond recognition, so there may be some exceptions.

> There are two fundamental functions of patents: 1) provide a way for an inventor to recover the costs of invention; and 2) provide an incentive for an inventor to disclose his invention. I don't see that hardware vs software or algorithm vs machine has any bearing on those purposes.

I don't doubt that patents achieve those purposes (*any* reward system would, whether expressed as an outright grant or prize, or a monopoly as with patents). However, patents also have a cost. Their purpose, first and foremost, is to benefit society. If the costs of patents outweigh the benefits, it doesn't matter whether the purposes you list are achieved. It is doubtful whether most patents are actually cost-effective; studies have repeatedly shown that they tend to *inhibit* innovation rather than encourage it. However, when a patent is issued over the abstract solution which either has no need to be reduced to practice, or which anyone could reduce to practice using existing well-known methods, the benefits of disclosure are less, and the costs to society in penalizing independent discovery and incremental improvements are far greater.

> There already exists an obviousness test for patentability which ought to cover most of the objectionable software patents.

You would think so, but if the existing rules were followed we wouldn't *have* software patents. The problem (at least so far as software patents are concerned) isn't the rules, it's the application of those rules within the patent office.

Software is The Glass Bead Game

Posted Jan 20, 2012 4:10 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

I find that most of what people call hardware and software is for the purposes of that discussion indistinguishable.
Hardware and software are quite easily distinguishable. ...

Yes, and what "for the purpose of that discussion" above means is that that distinction is irrelevant to the purpose of these many discussions that refer to hardware and software.

Where the distinction between hardware and software becomes relevant is in the fact that to move or copy hardware you have to move matter, but to move or copy software, you have only to move energy (and comparatively small amounts of it). That the latter is far, far less costly is responsible for most of the practical difference. So for example, I'd rather deliver a software update to my customer than a hardware update. The hardware update could be a new ROM chip containing the same bits that the software alternative would; it's still hardware. It could be a CD-ROM too.

I hear that at some level matter and energy are the same thing, so maybe if we look at it abstractly enough, even that distinction goes away.

Software is The Glass Bead Game

Posted Jan 21, 2012 2:26 UTC (Sat) by java_developer (guest, #82469) [Link]

I feel like you're gerrymandering the boundary between patentable non-patentable in an unprincipled way, where you find it convenient to do so .

For instance, if one-click is valid as you say, what is it that's being patented. It's a *certain* set of processing , set in motion be triggering the javascript on the web page, which results in a *certain* state of he world- the user is (say) identified, the user's information is retrieved (say), and an order is made with no more input from the user. This is what this patent covers.

The "one clickness" only refers to the fact that only a unitary act of intentionality is needed from the user in order to trigger the javascript in the button.

OK so the patent is really about a single unitary act of intentionality triggering this javascript which then performs a series of steps. Just to be clear about this now because it's important.

So I should be able to patent across all domains of human endeavor the combination of a single expression of intentionality triggering off any process which achieves a useful end.

For instance, there should be (SNARK AHEAD!-> I mean should have been, we just didn't realize it before the IP maximalist graced the world with their penetrating vision) ... there should be a patent not just for a particular light switch but the CONCEPT of a light switch (to which all light switch inventors would pay royalties) because a light switch- as opposed to a crank say, is just exactly a useful process triggered off by a single act of intentionality which completes without the end user needing to do anything else (crank the crank a few more times for instance).

In fact, the world is littered with devices which permit a single action to achieve an ends without further user input, and we have missed a great many opportunities to impose state sanctioned monopolies and collect rents which stymie innovation, er.. wait I meant to say encourage inventors to innovate and reward inventors for their inventions.

But not to despair. Now that we live in the Age of IP Enlightenment courtesy of IP Lawyers and their associated fee structures, we can move forward into the new world and design into every single new, individual useful process a single act of intentionality to trigger it off and thus secure an unending stream of new intellectual property from which we can derive great wealth and societal benefit, almost as if we had stumbled. across a previously unknown deposit of precious metal, just waiting to be mined and entered into the market.

This is silly and it's meant to be, but it's because it's not where the simplest extrapolation of the IP Maximalist position, as embodied by the one-click patent- leads directly to.

IP lawyers politely but quite arbitrarily stop their quest to redefine everything as patentable subject matter not where the logic of the arguments they use to justify their bid for expansive re-definition bid them to by its own internal logic, but rather just outside the gates of widespread moral outrage, a point they know quite well.

For now, only software developers understand what it is they're doing and are rightfully morally outraged. As long as ordinary people can't understand the issue, then the issue can continue to be grossly misrepresented by IP maximalists to legislators and courts in ways I'm sure
everyone here is well familiar with.

After software developers have accepted their new role as serfs who live on the land and at the pleasure of what wealthy princes there may be with their patent armies and lawsuits , then they'll move on to other, greener pastures in other areas of human endeavor. It's a classic divide and conquer because if the logic behind the one-click patent were actually applied in a consistent way across all domains simultaneously, the whole edifice of IP would crumble before its own absurdity.

But please, tell me I misunderstood what was being patented. Feel free, because you have no where to start from which ends you in any better position. I assure you I dealt you the strongest, least ridiculous hand available to you in my definition of what it is exactly that's being patented in one-click.

But I'm waiting...

applicable to all types of "clicks" and "results" which increase "convenience" no matter how absurd the resulting patent appears.

For instance, consider the "click" of a mouse. This isn't *really* about clicks and the number of them, it's about the triggering of the javascript code on the web page which does X with no further input from the end user.

. the device any gesture that the computer can recognize, say a hand movement has to be included. IN fact it's not any particular device or interaction, the mouse click was just one embodiment of the user's intention. That's what's really crucial, and everything thing else is just one manifestation of that intention.

Ok so now we have a one-intention

In fact, any intentionality is just one yype f "gesturte (ignoring just for right now the fact of its painful obviousness even at the time it was "invented") , then it's fair to also make patentable

Software is The Glass Bead Game

Posted Jan 21, 2012 2:29 UTC (Sat) by java_developer (guest, #82469) [Link]

ahh I shuold proof read.. I meant to say-

This is silly and it's meant to be, but it's NOT because it's not where the simplest extrapolation of the IP Maximalist position, as embodied by the one-click patent- leads directly to.

Software is The Glass Bead Game

Posted Jan 21, 2012 2:34 UTC (Sat) by java_developer (guest, #82469) [Link]

Ahh when I type into these little text form things it never goes well... IF you're interested in what is being said, just disregard the jumbled nature of the previous post and take this next post as the correct expression of the ideas.......

Software is The Glass Bead Game

Posted Jan 21, 2012 2:46 UTC (Sat) by java_developer (guest, #82469) [Link]

I feel like you're gerrymandering the boundary between patentable non-patentable in an unprincipled way, where you find it convenient to do so .

For instance, if one-click is valid as you say, what is it that's being patented?

It's a *certain* series of events, a certain process, which was set in motion by triggering the javascript on the web page. This process results in a *certain* state of the world- for instance, the user is identified, the user's information is retrieved, and an order is made with no more input from the user. These are this process's useful effects.

This is what this patent covers.

The "one clickness" only refers to the fact that only a unitary act of intentionality is needed from the user in order to trigger the javascript process embedded in the button.

OK so the patent is really about a single unitary act of intentionality triggering this specific series of steps.

Just to be clear about this now because it's important.

So I should be able to patent across all domains of human endeavor the combination of a single expression of intentionality triggering off any process which achieves a useful end.

For instance, there should be (SNARK AHEAD!-> I mean should have been, we just didn't realize it before the IP maximalist graced the world with their penetrating vision) ... there should be a patent not just for a particular light switch but also and more importantly the CONCEPT of a light switch (to which all light switch inventors would pay royalties) because a light switch- as opposed to a crank say- is just exactly a useful process triggered off by a single act of intentionality which completes without the end user needing to do anything else (crank the crank a few more times for the required level of brightness , for instance).

But not to despair. Now that we live in the Age of IP Enlightenment courtesy of IP Lawyers and their associated fee structures, we can move forward into the new world and design into every single new, individual, useful process a single act of intentionality used to trigger it off and thus secure an unending stream of new intellectual property from which we can derive great wealth and societal benefit, almost as if we had stumbled across a previously unknown deposit of precious metal, just waiting to be mined and entered into the market.

This is silly and it's meant to be, but it's not because it's not where the simplest extrapolation of the IP Maximalist position- as embodied by the one-click patent- leads directly to. Because this is where that position leads to quite directly.

IP lawyers politely, but quite arbitrarily, stop their quest to redefine everything as patentable subject matter not where the logic of the arguments they use to justify their expansive re-definition bid them to stop by those argument's own internal logic, but in rather another place which is quite unrelated to applicability of their aruments. They coyly stop just outside the gates of widespread moral outrage, a location they know quite well.

Because for now, it's only software developers who understand what it IP lawyers are doing and who are rightfully morally outraged.

As long as ordinary people can't understand the issue, then the issue can continue to be grossly misrepresented by IP maximalists to the legislators and the courts in ways I'm sure everyone here is well familiar with.

After software developers have accepted their new role as serfs who live on the land, and at the pleasure of, wealthy princes and their patent armies. l;awyers and lawsuits, then the IP lawyers will move on to other, greener pastures in other areas of human endeavor.

It's a classic divide and conquer.

If the logic behind the one-click patent were actually applied in a consistent way across all domains simultaneously, the whole edifice of IP would crumble before its own absurdity.

But please, tell me I misunderstood what was being patented in the one-click patent.

Feel free, because you have no where to start from which ends you in any better position.

I assure you I dealt you the strongest, least ridiculous hand available to you in my definition of what it is exactly that's being patented in one-click.

But I'm waiting...

Software is The Glass Bead Game

Posted Jan 21, 2012 19:29 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

I feel like you're gerrymandering the boundary between patentable non-patentable in an unprincipled way, where you find it convenient to do so .

I wonder what convenience you have in mind. You must believe there is some related thing I'm trying to prove.

if one-click is valid as you say,

I didn't say that.

Incidentally, I would have liked to use a different example of a software patent. I'm not even sure 1-click is included in what people call software patents. I would have liked to use a patent that is practiced in software you acquire and run on your own computer, such as the Linux kernel, but I couldn't think of one.

Software is The Glass Bead Game

Posted Jan 23, 2012 0:56 UTC (Mon) by java_developer (guest, #82469) [Link]

I am addressing you a a general proponent of sw patents. Am I wrong?

Regarding whether one-click is a sw patent, we have lately another one click type patent- the apple "slide to unlock" fiasco against Samsung. This is being covered as a sw patent, I think.

Software is The Glass Bead Game

Posted Jan 23, 2012 16:23 UTC (Mon) by giraffedata (subscriber, #1954) [Link]

I am addressing you as a general proponent of sw patents. Am I wrong?

I am not a general proponent of software patents. In fact, I don't even think the term has a clear meaning, so it would be hard to advocate for them. I'm not against them either, though. I'm saying whether an invention involves software or not should not be a factor in patent worthiness.

Thanks for the slide-to-unlock patent example; I think it's a much cleaner one.

This is an idiotic patent. It's idiotic because the public gets no benefit from it, which is because

Apple would have invented it even without the promise of patent protection, just to use it in its own products.
Using it in its products, Apple couldn't keep it secret.
Even if Apple didn't find using it in its products sufficient incentive to invent, anyone else who could benefit from it could easily invent it independently.

These factors would apply even if slide-to-unlock were implemented in logic gates, analog electronics, or clockwork, which I believe it would not be called a "software" patent.

(Incidentally, when I say idiotic, I mean from a public policy perspective. I'm not saying it is idiotic for Apple to apply for the patent, the patent office to grant it, or a court to enforce it. The law is what it is).

Software is The Glass Bead Game

Posted Jan 23, 2012 17:56 UTC (Mon) by dgm (subscriber, #49227) [Link]

> It's idiotic because the public gets no benefit from it

That's something that should make policy makers think, and perhaps we should be voicing it harder.

Software is The Glass Bead Game

Posted Jan 24, 2012 15:24 UTC (Tue) by java_developer (guest, #82469) [Link]

"I am not a general proponent of software patents. In fact, I don't even think the term has a clear meaning, so it would be hard to advocate for them.'

Smirk. Yeah this is the argument used by people who are the strongest proponents for software patents; it seeks to beg the entire issue off as a non-issue and in so doing, close off the subject once and for all.

"Hey, there is no such thing as software patents. So how can there be talk about *banning* them?"

Let me help you out.

Even if you don't *believe* in them as you say, you are still quite well aware of what other people mean when they ask you if you're for them or against them.

So if anyone asks you for your position, just say you're 100% for them. That way we all understand each other.

I am amused looking over your lists of reason why you say you're against Apple's version of Amazon's "one-click-patent", "slide-to-unlock". All your objections amount to this particular patent failing to live up to the purported raison d'etre of any patent- to promote the useful arts and sciences.

But in making this argument against this patent, you silently assume- without proof- that ALL software patents don't also fail this test.

Its not for nothing that the vast, vast majority of software developers believe they do fail this crucial test, that they in fact impede progress instead of encourage it.

That ought to fairly settle the case as to whether they should be permitted or not- the people who are purported to be *encouraged* by them experience them to be a demotivating, depressing waste of time, energy and resources and want them taken out into the woods and shot in the back of the head.

Yet for some rea$on, the proponents of $oftware patent$ think the aggregate opinion of the experts and practitioners in the field which is effected by these court decisions should be ignored.

And whose opinion should be substituted for the actual practitioner's?

The class of people who are in favor of software patents are executives of corporations, a few ideologically motivated think tanks, IP lawyers and of course trolls, like our dear friend Myron:

http://www.npr.org/blogs/money/2011/07/26/138576167/when-...

If I ever wanted to throw a party for a group people who have more than earned their reputations as entities antagonistic to the long term good and general welfare of society, I'd be sure all of the above's names were on the invite list.

Study after study has found that software patents neither promote technological progress in the field nor generate economic benefit except as instruments of monopolies for specific companies, and then that benefit is only to that company, and not to the consumer or even the economy as a whole.

On a personal note, I have to say I especially enjoy seeing software patents vigorously defended in *certain* IP lawyers' blogs. Aside from the brain dead arguments presented with a 5th grader's vocabulary, and their presentation of "studies" from "reputable" sources like, oh, The Chamber of Commerce, the pictures these lawyers have up of themselves - bloated, jaws agape, vacuous looks on their faces, lead me to quite expect I'll be seeing them featured in a near-future episode of 48 Hours, identified as the person of interest in this week's Cocaine/Stripper Murder Mystery.

But maybe that's just my impression.

Well then, getting back on point... software patents are a net drain on the economy and the entities who benefit from them nothing but economic parasites as demonstrated by virtually any serious academic who takes up the issue:

http://www.bu.edu/law/faculty/scholarship/workingpapers/B...

http://esp.wdfiles.com/local--files/2008-state-of-softpat...

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1562678

http://ssrn.com/abstract=1411328

http://www.innovation.gov.au/innovationreview/

http://writtendescription.blogspot.com/2011/06/lemley-myt...

http://www.npr.org/blogs/money/2011/07/26/138576167/when-...

Software is The Glass Bead Game

Posted Jan 24, 2012 16:58 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

Even if you don't *believe* in them as you say, you are still quite well aware of what other people mean when they ask you if you're for them or against them.

No, I am not aware of what they mean, and I don't think it is clear in their own head what they mean. Every time they try to define the term, they end up with a definition that either doesn't cover the particular patents they call software patents or covers many patents they don't. Or doesn't use the term "software" in anything like the way it's normally used.

I'll give you this: as long as a patent that doesn't promote the useful arts and doesn't involve software in any way is legal, then I think a similar patent that does involve software should also be legal. Maybe that's what you mean by being a general proponent of software patents.

Software is The Glass Bead Game

Posted Jan 27, 2012 21:39 UTC (Fri) by java_developer (guest, #82469) [Link]

I understand what you *mean* about hardware vs software and acknowledge it. But in so doing, notice I'm doing something *for you* that you refuse to do *for others*. That thing is- understanding what they *mean* and acknowledging it.

So the situation you expect is - everyone must acknowledge GiraffeData's position by accepting that he/she does NOT know what a software patent is and talking to him/her so as to respect his/her position, while GiraffeData will not acknowledge anyone else's position and concede he/she knows perfectly well what people *mean* when they talk about software patent.

Expecting other people to extend to you a courtesy you yourself will not extend to them has the following properties:

It is rude.

It is egocentric (only my position is deserving of respect !)

It represents an attempt to smuggle in an apriori conclusion into any discussion through forcing others to continually tacitly acknowledge your POV, while you slight theirs. So the debate will always take place using terms of discussion which favor you unfairly and in fact assume you are right and they are wrong.

Now when I said I understand what you meant and acknowledge it, notice I didn't say I agree with what you meant.

All I was suggesting in my previous post is you stop playing coy with other people when this discussion comes out. You're not standing on principle; you're slyly trying to win the debate, being egocentric and just plain rude.

Let me give you a taste of what it's like to receive what you dish out to other people in this regard.

I can suppose you don't think of a company as a machine. The "well oiled machine" metaphor is just that- a metaphor. But if someone wanted to challenge you on that , how would it go? Would you say people obviously aren't parts of a machine? They would reply with the prejudicial nature of your definition of "parts of a machine". Then wax on and on about how, just as when a part in a machine is broken and needs to be replaces, so also do companies fire people and hire new one for the exact same position. And so on and so forth in many creative but ultimately weird and obtuse ways.

In deed, a determined opponent could really give you quite a headache for quite a long time and in the end, you won't have decisively won the battle because once you start denying what's obvious to most other people, there's really nowhere you can't go with it. Whose to say what's REALLY the definition of "machine" Well, the winners of course! And who's going to win the argument? The person who is outlasts, out talks, out spends, out lobbies, and out litigates the other one ! Once you permit the parties to wander away from the obvious, largely agreed upon meanings of terms like "company" and "software" and "hardware" then there's no where you can't go.

And all the while you were arguing with this hypothetical clown, you'd be thinking -"is this person just a headcase claiming not to be able to tell the difference between machines and companies? "

Then it comes out that the person you're having this bizarre argument with has very strong financial motives for wanting to blur this otherwise clear distinction. If he can blur it, if he can get you to swallow and accept his gerrymandered definition of "company", he has a non-stop stream of extremely lucrative income he can access at will.

When programmers tell you that software is one thing and hardware another, they're having the same experience as you would be in the above, and you're doing to them what the antagonistic arguer would be doing to you.

The EU seems to have gotten down the difference between hardware and software into their laws in a consistent manner and only people on M$'s payroll are "confused" by it.

It's bullshit. We all call bullshit and we're not going to let you carry the day. Software is adequately and appropriately protected by the IP device of copyright. Plot devices in plays don't become patentable because they are "realized" by actors in a play and software isn't patentable because it's run on a machine . The specific expression of both are protected by copyright and that has served us well for a long long time in both fields.

Your "confusion" is nothing but an exercise in denying the obvious.

Software is The Glass Bead Game

Posted Jan 28, 2012 1:24 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

You are amazingly certain you know what I'm thinking. It's amazing because you have so little information about me based on this tiny discussion and because you're sure enough that you can write off my direct statements as lies because they're inconsistent with what you know is going on in my head.

You really ought to follow my example and assume you don't know what other people are thinking rather than assume something that makes them jerks.

So there's no way I can carry on an argument with you about what I'm thinking, and it's off-topic anyway, but for the record, I am going to make these statements:

I am not engaging in rhetorical tricks and have no reason to because I am not trying to win a debate. I am only trying to expose readers of LWN to perspectives or analyses some of them may not be aware of.

At least that's what I was doing before you diverted the conversation into a discussion about me and about the conversation itself.

Software is The Glass Bead Game

Posted Jan 28, 2012 7:11 UTC (Sat) by java_developer (guest, #82469) [Link]

No actually if you read the thread through you directly said you believe software is patentable subject matter and then you directly said that in fact there is no material difference between software patents and hardware patents.

Actually, you DID say those things and actually, they ARE the arguments used for software patent apologists. So in exposing these ideas- which you admit you hold- as fundamentally disingenuous, manipulative and really extremist, which they are, I am not laying claim to special knowledge about what's in your head beyond what you've revealed and neither am I taking this conversation about software patents off-topic.

What is the Newt Gingrich approach to debate- attack the other side when your actions are exposed and claim that calling you out on things you actually said is some form of "dirty trick"? So somehow by calling your own ideas to the floor and criticizing them I'm trying to "make it personal" ?

I am comfortable with that anyone reading this thread will agree that I kept it very much on topic and quoted you honestly while replying with ideas, facts and arguments which themselves have a great deal of merit.

Software is The Glass Bead Game

Posted Jan 28, 2012 17:38 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

No actually if you read the thread through you directly said you believe software is patentable subject matter and then you directly said that in fact there is no material difference between software patents and hardware patents.

Those are fair paraphrasings of my words and statements of my beliefs for suitable definitions of "subject matter" and "software patents" and "hardware patents" (terms which I did not use myself). And I can imagine reasonable, though not necessarily useful, definitions of those that are suitable.

Where you claim to know differently than what I say about what is in my head is when I twice said in very direct language I don't know what people mean by "software patents" and each time you said that I do.

Software is The Glass Bead Game

Posted Jan 28, 2012 18:52 UTC (Sat) by java_developer (guest, #82469) [Link]

I see. I see. Well I think I addressed that about as well as I can. You're talking about them right now so it's not like you heard a word and don't know what it is.

What you mean to say is not that you don't know what those crazy things are about or what people mean when they start talking about them, because obviously you KNOW what we mean.

What you mean to say (and here I am telling you what you mean, which is sure to piss you off I am aware) is something more like "I don't think there *ought* to be a distinction between software and hardware when it comes to 101ness i.e. fundamental patent eligibility."

For the record, a software patent is a patent on some software which is run on a computer. This is irrespective of whether that computer has a screen, an actuator arm or other device attached to it which changes some state of matter either internal to the computer or in the external world. No software, no matter how it intersects with the world outside or inside any machine ought to be patentable, not to say copyrightable, which almost all programmer believe is a fair application of IP, with a few notable personalities excepted.

Software is The Glass Bead Game

Posted Jan 30, 2012 17:02 UTC (Mon) by giraffedata (subscriber, #1954) [Link]

... a software patent is a patent on some software which is run on a computer.

By that definition, I am not in favor of software patents. Patenting some software is like patenting a sculpture (or a mold for a sculpture). Only inventions should be patentable, and a piece of software is not an invention.

However, I don't think that's what is controversial, because I don't think patents get issued for some software. I'm really not a patent expert, but I don't think patent claims for the patents in question include program listings or even abstract descriptions of program listings. I assume the claims of click-to-unlock (which I assume people include in the "software patent" category) talk about features of an iPhone (a piece of hardware) more than about computation steps. I doubt a code rewrite would avoid infringing it.

I believe the definition people usually use for "software patent" is something more like "a patent on an invention that is typically implemented with software." But much less vague, since there are so many kinds of software and so many ways to implement something using it.

Software is The Glass Bead Game

Posted Jan 30, 2012 17:52 UTC (Mon) by nybble41 (subscriber, #55106) [Link]

> I assume the claims of click-to-unlock (which I assume people include in the "software patent" category) talk about features of an iPhone (a piece of hardware) more than about computation steps.

That's "slide to unlock", and it's not a feature of the iPhone hardware, but rather a feature of iOS (software). The hardware used is completely incidental to the subject of the patent. Actually, it's more of a user-interface patent than a software patent--as you say, it's not really about the computational steps involved--but if anything, UI patents are even harder to justify than patents on algorithms. A trademark would be much more appropriate (and more limited in scope).

Software is The Glass Bead Game

Posted Jan 31, 2012 1:25 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

it's not a feature of the iPhone hardware, but rather a feature of iOS (software).

I meant that the iPhone itself is a tangible item. There is a valid perspective where it the implementation is irrelevant and all you see (and buy and sell and use) is a physical box that does stuff when you touch it in various ways. It might not be relevant for patent purposes, in some views, how the builder got the machine to behave the way it does, just that the machine does.

Software is The Glass Bead Game

Posted Jan 31, 2012 1:42 UTC (Tue) by dlang (✭ supporter ✭, #313) [Link]

if it's a matter of the hardware, then someone who develops different hardware that uses the same gesture should not have anything to worry about.

'slide to unlock' can be implemented on any touchscreen or touchpad device. Such devices have been out for a LONG time.

so what is it that makes the apple patent on slide to unlock anything other than a software patent?

Software is The Glass Bead Game

Posted Jan 31, 2012 2:25 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

I'm certainly not saying that slide-to-unlock is not a software patent. In fact, we've been using it as an example of one all along.

And I am only guessing as to what the claims of that patent are. I'd like to know, actually (not enough to read it, though).

But I'm willing to bet, still, that they don't include program listings or identify a particular piece of software, so if one's definition of software patent is a patent on some software, it isn't one of those.

Software is The Glass Bead Game

Posted Jan 31, 2012 2:39 UTC (Tue) by jrn (subscriber, #64214) [Link]

Ok, here's a simple question to help flesh out what you are saying. US patent 4558302 (LZW compression) is pretty old and easy to find online. Its figures do include some code listings, though if they didn't I don't think that would change anything. It is definitely not a patent of any particular software package; it is a patent on the algorithm.

Is it, in your view, a software patent?

Software is The Glass Bead Game

Posted Jan 31, 2012 3:03 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

Is it, in your view, a software patent?

I don't know. Remember, I'm the guy who says he doesn't know what the term "software patent" means.

Incidentally, though I have only a passing familiarity with patents, ISTR there is stuff in an application besides claims, like stuff that demonstrates the invention is actually complete and useful, so drawings and code listings might be in there without being part of the claims.

Software is The Glass Bead Game

Posted Jan 31, 2012 5:32 UTC (Tue) by dlang (✭ supporter ✭, #313) [Link]

nothing in a patent is required to be 'useful'

Software is The Glass Bead Game

Posted Jan 31, 2012 16:08 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

nothing in a patent is required to be 'useful'

One thing I do remember from a class long ago is the three pillars of patentability: the invention must be new, useful, and nonobvious. I just googled that phrase to make sure I hadn't fabricated it in my mind over the years, and I got a bunch of hits.

Software is The Glass Bead Game

Posted Feb 1, 2012 12:53 UTC (Wed) by java_developer (guest, #82469) [Link]

dlang a patent does have to be useful, at least in the US which may not be where you are based.

Software is The Glass Bead Game

Posted Feb 1, 2012 19:22 UTC (Wed) by dlang (✭ supporter ✭, #313) [Link]

in theory you are correct, but in theory it must also be novel and non-obvious.

in practice, the person applying for a patent doesn't even have to prove that the idea works (no working models required)

Software is The Glass Bead Game

Posted Jan 31, 2012 3:33 UTC (Tue) by nybble41 (subscriber, #55106) [Link]

> It might not be relevant for patent purposes, in some views, how the builder got the machine to behave the way it does, just that the machine does.

See, this right here is the real problem. Before the advent of general-purpose computer and software--and software patents--a patent did only cover a specific implementation: how the machine or process works, not the end product. You don't get a patent for steel; you get a patent for a particular process which produces steel. You don't get a patent for "devices which do X", you get a patent for "a specific, non-obvious design for a device which does X". Accomplishing the same end by sufficiently different means does not infringe the patent.

How a machine works may not be relevant from a *consumer's* point-of-view, but when it comes to patents the machine's inner workings are the entire point of the exercise. There is simply no *point* in granting a patent which monopolizes the end result without revealing anything non-obvious about how that result was achieved; such patents are 100% public cost with no public benefit.

Software is The Glass Bead Game

Posted Jan 31, 2012 4:39 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

But what is internal and what is end result is a matter of perspective too. Imagine a patent for mousetraps that is for avoiding slapping your finger when you try to bait it. It claims a switch away from the trap area that locks the trap open, You unlock it from a safe distance after you're done baiting. One could say you patented the end result of a mouse trap that doesn't close while you're baiting it, or one could say you patented the end result of having a mouse trap with a remote switch, covering every possible implementation of that switch.

A slide-to-unlock switch on a pocket touch-screen device is not qualitatively different.

I don't see any point to struggling with the semantics of end result and implementation here, because the real point is the obviousness. Whether you view the obvious thing as an end result or an implementation doesn't matter; the public loses either way if someone gets the exclusive right to it.

Maybe what general purpose computers did was just make it really easy to invent really big things and messed up the balance.

Software is The Glass Bead Game

Posted Jan 31, 2012 5:31 UTC (Tue) by dlang (✭ supporter ✭, #313) [Link]

in your mousetrap example you are not getting a patent on all remotely activated mousetraps, only for your particular combination of hooks, levers, etc that you used.

software patents generally do not include code listings, at most they include pseudocode (and even then, usually as an example "this patent could be implemented like this")

It's frequently hard for the original inventor to match up the patent legalese with the description of the idea that they submitted to the legal department.

if you have never read any software patents, you really don't have any idea how bad they are.

Software is The Glass Bead Game

Posted Jan 31, 2012 5:38 UTC (Tue) by nybble41 (subscriber, #55106) [Link]

> One could say you patented the end result of a mouse trap that doesn't close while you're baiting it, or one could say you patented the end result of having a mouse trap with a remote switch, covering every possible implementation of that switch.

Either way, the real "end result" is an unclosed, baited mouse trap. You can't patent that. What you can patent is device which makes achieving that state a bit easier, provided it meets the other criteria, such as non-obviousness.

> A slide-to-unlock switch on a pocket touch-screen device is not qualitatively different.

First, there is no "switch" involved. The hardware (touch screen) is not the subject of the patent. Second, this isn't a software patent; it covers a virtual user-interface pattern, not an algorithm. This isn't so much a case of patenting what a mouse-trap does (which would be bad enough) as patenting what a mouse-trap *looks like*, which is even further outside the domain patents were intended to cover. As I said before, a trademark would be much more appropriate here.

Regarding actual software patents, however, such as a patent on a compression algorithm or a form of encryption, the qualitative difference is obvious: You build a mouse-trap, but you *evaluate* an algorithm. An algorithm is just as complete in your head, or worked out with pencil and paper, as it is running on a computer. The computer is just a tool to speed up the process, just as the pencil and paper serve to supplement your memory. The mouse-trap, on the other hand, is of no direct use to anyone until it's given physical form.

Not that any of this really matters, of course, as regular patents are just as devoid of legitimacy as software patent. They're not the same thing, but that doesn't make them any more just.

Software is The Glass Bead Game

Posted Feb 1, 2012 13:43 UTC (Wed) by java_developer (guest, #82469) [Link]

GiraffeData said:

But what is internal and what is end result is a matter of perspective too.

What you're saying is true. It's a problem with examiners, judges and the courts that they are not equal to seeing through the distorting perspective presented to them by patent attorneys and their clients who seek to impose a distorted notion of what should be patentable subject matter for the purpose of restricting competition in the second case and siphoning off vast sums of capital for non-value producing activities in the first case.

GiraffeData said:

Maybe what general purpose computers did was just make it really easy to invent really big things and messed up the balance.

It's not a bad way of expressing it. Actually, what computers did was advance society in astronomical ways.

Later, much later, what IP lawyers did was conceive of a scheme to inject themselves, like a virus, into that value stream and create a diseased condition whose symptoms are, the creation of value is slowed to the point of extinction relative to what it had been prior; the IP attoneys extract obscene amounts of money from the creators of that value; insurmountable barriers to entry upon would-be creators of value is introduced; huge amounts of time and energy are spent warring over patents which have a net negative value to everyone but IP attorneys; would-be creators of value are discouraged from the field.

There is no reason that equally abstract things are not patented except the current regime of IP everything didn't arrive on the scene prior to their existence.

The examples are endless and everywhere.

For instance, novel plot twists clearly should be patentable - they fit the criteria: useful? - the novelist generates economic activity just because she's clever; non obvious? - by definition; advance the art? - other novelists can use variants on the new plot twist, after paying the original novelist.

Surely such a scheme must increase economic activity and increase a nation's wealth if IP Maximalist's arguments are to be believed.

So why are novel plot twists not patentable?

Ahem...

Patent #0239489023234: A Plot Twist Involving Gender Deception

An entity, in one realization a man who is in love with another entity , in one realization a woman, whereby the first entity deceives the second entity through the device of disguising their gender, using for instance a wig and makeup, for the purpose of obtaining a more intimate proximity to the second entity.

Blah blah blah,

fuckin' blah blah blah,

fuckin' blah,

fuckin' blah blah blah....

Application Number 28734897239723 Filing Date: MAR 2010 Patent Number 98247892374923784 Issue Date 6222646 Feb 1 2012

The ONLY reason society is not now jammed to the gills and floating lifeless on top of a dead stream of innovation is because there was no computer on which to realize novels and no IP attorneys looking over that computer thinking... "hmmm....it's a machine, isn't it?"

Software is The Glass Bead Game

Posted Feb 1, 2012 13:03 UTC (Wed) by java_developer (guest, #82469) [Link]

nybble41 said:

Actually, it's more of a user-interface patent than a software patent--as you say,

nybble41 a user interface patent is almost always a software patent. I am not aware of any patents being placed on user interfaces which are not software based. If there such a thing out there, then it's an abomination also.

Either you're patenting the software code itself, in which case it's called a "copyright" and not a patent, or you're patenting what the thing does and and a series of steps involving abstract things, irrespective of the code that underlies it. This later case is what a software patent is.

Therefore user interface patents ARE software patents- they patent an end result , from the POV of programmers, regardless of how it's realized in code.

They are defined on things which are purely abstract in nature and can be "realized" in many different ways. So not only is slide to unlock covering the Apple interface, it's covering ALL interfaces.

Software is The Glass Bead Game

Posted Feb 1, 2012 17:42 UTC (Wed) by nybble41 (subscriber, #55106) [Link]

> nybble41 a user interface patent is almost always a software patent. I am not aware of any patents being placed on user interfaces which are not software based.

I agree that user interface patents are almost always about interfaces implemented in software. However, when I use the term "software patent", I am specifically referring to a patent on an algorithm, not the vague and likely over-broad "patent on an invention that is typically implemented with software" which was expressed elsewhere.

Something like "slide-to-unlock" can be said to contain a very simple algorithm ("if a slide gesture is recognized, unlock the device"), but the patent is really about a distinctive style (sliding vs. entering a code, or tapping a button, or any of the other means of unlocking touch-screen devices used before), not the algorithm, which ought to be rather too trivial and obvious to qualify for a patent on its own merits, even assuming patents on algorithms were generally acceptable.

> If there such a thing out there, then it's an abomination also.

Agreed, 100%.

> Either you're patenting the software code itself, in which case it's called a "copyright" and not a patent, ...

You don't "patent the software code". As you said, code is covered by copyrights, not patents. A software patent--a patent on an abstract algorithm--would cover *all possible implementations* of that algorithm in software code, including independent clean-room code written without knowledge of any other implementation or the patent itself, which is much broader than the copyright on specific code implementing the algorithm.

> ... or you're patenting what the thing does and and a series of steps involving abstract things, irrespective of the code that underlies it. This later case is what a software patent is.

I agree that this is what a software patent is, but user interface patents are something else entirely. The slide-to-unlock patent, for example, doesn't seek to monopolize the "algorithm" of sliding your finger along the screen to unlock the device (which, as an action performed directly by a human, would be rather dubious as the subject of a patent), but rather the "look and feel" of the interface presented by the device, the graphics drawn on the screen combined with the device's response to a particular input gesture, without reference to the algorithms for producing those graphics, recognizing that gesture, or actually unlocking the device.

Software is The Glass Bead Game

Posted Feb 1, 2012 12:51 UTC (Wed) by java_developer (guest, #82469) [Link]

Sorry to have neglected this thread.

GiraffeData said:

However, I don't think that's what is controversial, because I don't think patents get issued for some software.

A "patent on software CODE" which is the idea you're trying to express in the above is called "copyright". Copyright is indeed issued on all code the second it's been written with no special trip to the USPTO or like needed on the part of the developer.

Most by far, although not all, software developers think copyright is OK.

GiraffeData said:

the claims of click-to-unlock (which I assume people include in the "software patent" category) talk about features of an iPhone (a piece of hardware) more than about computation steps.

Wrong. They talk about the user doing this to the interface and then that occurring as a result. They talk about the steps of the interaction and the result of the interaction and "one realization" of the patent which is what the thing actually looks like and does but is just ONE realization while the patent covers an infinitude of realizations, so it's not pinned down to any particular "realization" .

GiraffeData said:

I doubt a code rewrite would avoid infringing it.

Oh, and how right you would be. It's a patent on an abstract set of "aspects of a thing" (but one realization is provided so the examiner "knows what they mean" ) interacting on an abstract "device" in certain ways.

GiraffeData said:

This is correct.

Software is The Glass Bead Game

Posted Feb 1, 2012 18:14 UTC (Wed) by giraffedata (subscriber, #1954) [Link]

the claims of [slide-to-unlock] (which I assume people include in the "software patent" category) talk about features of an iPhone (a piece of hardware) more than about computation steps.
Wrong. They talk about the user doing this to the interface ...

The interface to an iPhone (or anything like one), as opposed to some software.

Ask any user what the touch screen is for communicating with, and he'll say the iPhone. Not iOS. He'll say "I'm going to drive into town to pick up an iPhone today because it has a slide-to-unlock feature." An Apple attorney pulls an Acme Smartphone out of his briefcase and sets it on the bar and says, "this thing practices our slide-to-unlock patent."

That's how one can see the patent claims as related to hardware at least as much as to software.

There is some level in every implementation of anything where you have to say, "variations at this level aren't part of the invention." I'm just saying there is no bright line telling you how high that line can be before the invention is not patent-worthy, so maybe whether or not the thing is implemented with software is below it.

I'm also saying it's a waste of time to try to identify kinds of inventions that are above or below the line when you can just go case-by-case by first principles (e.g. is the invention is obvious?).

Software is The Glass Bead Game

Posted Feb 1, 2012 20:05 UTC (Wed) by nybble41 (subscriber, #55106) [Link]

> There is some level in every implementation of anything where you have to say, "variations at this level aren't part of the invention." I'm just saying there is no bright line telling you how high that line can be before the invention is not patent-worthy, so maybe whether or not the thing is implemented with software is below it.

Whether or not the thing is implemented with software is irrelevant. The problem with software patents and the like is the nature of the thing itself: an algorithm or user-interface element, as opposed to a device or manufacturing process.

To put it simply, the proper domain of patents is *technology*: how one can take advantage of the laws of physics in a novel and non-obvious way to accomplish some useful end. They shouldn't cover something you could, in principle, do in your head (e.g. algorithms), even if in practice you make use of existing technology to speed up the process or supplement your memory. A patent on the look of a device or an abstract interaction concept is even further afield.

Software is The Glass Bead Game

Posted Feb 2, 2012 3:19 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

It sounds like we agree on much, but

They shouldn't cover something you could, in principle, do in your head (e.g. algorithms)

Why is that? If it requires a significant investment to arrive at an algorithm you can do in your head, one which would others would want to use, isn't it in our best interest to offer a monopoly on use of the algorithm to the inventor? That would give him a way to recover that investment from the people who benefit from the algorithm, and thus an incentive to make the investment.

Software is The Glass Bead Game

Posted Feb 2, 2012 3:21 UTC (Thu) by raven667 (subscriber, #5198) [Link]

Because asking to regulate other peoples thoughts is unenforceable and insane?

Software is The Glass Bead Game

Posted Feb 2, 2012 11:53 UTC (Thu) by java_developer (guest, #82469) [Link]

GiraffData said:
Why is that? If it requires a significant investment to arrive at an algorithm you can do in your head, one which would others would want to use, isn't it in our best interest to offer a monopoly on use of the algorithm to the inventor? That would give him a way to recover that investment from the people who benefit from the algorithm, and thus an incentive to make the investment.

See here's the thing with the IP Maximalist arguments of which this is a classic, absolutely sterling example (and BTW I am terribly glad you made it here because if I had presented what you said and merely claimed it was what was motivating you underneath it all, no one would have believed me..) OK here's the thing-

They represent a complete reworking of the way civilization and its members would conduct themselves down to the smallest, most invasive detail.

And they want to impose this without feeling the even the smallest duty to conduct a shred of what civilization calls "scientific inquiry" into the possible effects the imposition of their proposed program would have.

And why is this? Because they know... ladies and gentlemen they KNOWWWW... what's good for everyone else, and through the courts and legislators they've found the leverage they need to impose their vision on society.

What's the problem with arguing with a fanatic? Only this- their ideas are so fucking crazy that no one is actually prepared to address their specific claims.

Usually society is inoculated from this shit just because, without anyone having to go to the bother of working out exactly why, their ideas just get rejected by most other people.

Without the assistance of other members of society, they're going nowhere.

Maybe they become a writer with a cult following or maybe they start their own religion but they aren't getting at the levers of power in society.

Enter the IP Maximalists. If a little IP is good, then more MUST be better. This is the sum total of the proof they offer for the radical reworking of society they seek.

The gulf that exists between what they're thinking - when they reveal it- and what the average person thinks is worth remarking on.

At least they're confused about the basic nature of society. People are revolted at the idea of patenting a thought process but the IP Maximalist cheerily offers it up as a smacking good idea.

What does this say? That the IP Maximalist has no intuitive understanding about the basic nature of social interactions and what purpose those interactions serve in society.

Let's just hang a cash register and some barbed wire around everything. Nothing inherently repulsive in that! We'll hash out the *right* level of abstraction in the courts.... and that itself a fine use of societal attention, money and intelligence.

It says that IP Maximalists have a strong and narrow scope of comprehension and are good at focusing in on one aspect of reality, the value of IP, but utterly blind to the larger picture of society their ideas have to exist in.

The fact that people are offended by their ideas baffles them; the IP Maximalist looks around uncomprehending at their distress. What's wrong? What did I say? I didn't intend to offend anyone ...

OK Giraffdata, suppose we permit the patenting of algorithms that you can do in your head. What sort of regime would have to be imposed between people in order to facilitate the prosecution of violations, never mind find them?

OK GiraffeData, what effect over time would the existence of such a regime have on human intercourse and our perception of each other and attitudes towards each other?

I just got done reading a review of a study by a psychologist, you know a scientist, someone who lives under the constraint of having to PROVE her ideas are true. Of course compared to your program, each of their ideas is VASTLY more modest in scope and effect than what you're proposing for society, so perhaps this won't interest you, but nevertheless maybe other readers will see my point.

In this study she was able to show that the mere MENTION of money casually, in passing, had the effect of making the study's volunteers LESS altruistic towards strangers.

Now I can imagine all kinds of arguments being made that the idea of money makes people more altruistic because they have to cooperate to get it so the more we inject the concept of money into everything, the more altruistic people will become!

The difference is, one is just an idea, a philosophy, a hypothesis about how people will behave in hypothetical circumstances and the other is what a scientific study shows to be true about humans.

This is one study. It doesn't prove anything definitively and forever, even about people's behaviour in the rarefied and contrived circumstances which were realized in the study .

How many studies have the IP Maximalists done? Zero. Their ideas are purely exercises in inductive and, god help us, deductive reasoning using at best tangentially related statistical studies produced by academic economic departments and ideologically motivated "think tanks".

People are revulsed by the IP Maximalist program for reasons that have nothing to do with the internal logical cohesion of the myopic set of ideas they propose. They're revulsed because a few million years of evolution have left them with brains which naturally reject this kind of thing as BAD for society, even before any psychologist performs any experiment. This intuitive sense goes by different names. History or tradition or common sense or culture.

If a few million years of evolution left you with another kind of brain, then at least know that just as everyone else can understand the difference between a software patent and a hardware patent, so also everyone else finds the idea of patenting thought algorithms, play plot devices, business methods, incentive schemes, arrangements of data, arrangements of ideas, arrangements of human activity, the mere presentation or interaction order of just anything- useful and novel or otherwise, and finally, yes software, as inherently revolting and highly destructive to the fabric of society.

Software is The Glass Bead Game

Posted Feb 2, 2012 17:01 UTC (Thu) by nybble41 (subscriber, #55106) [Link]

> If it requires a significant investment to arrive at an algorithm you can do in your head, one which would others would want to use, isn't it in our best interest to offer a monopoly on use of the algorithm to the inventor?

As various studies have shown, it's not in our best interest to offer monopolies at all, even for things which *are* within the domain of patents.

However, to consider granting monopolies over certain patterns of thought... I'm having a hard time believing that you're serious. Among other things, it would be a very literal form of thoughtcrime, which implies not only an incredible infringement of the rights of the individual, but also that it would be impossible to enforce fairly.

Moreover, historically, algorithms have been researched because they were needed for a specific task, not because of the promise of a patent, and once used they are basically impossible to maintain as a trade secret. Consequently, no further incentives are required to encourage either the discovery of algorithms or their public disclosure. A monopoly in this case does not merely cost the public more than it benefits them, as with normal patents; it is a pure public cost which brings *no* public benefit.

Software is The Glass Bead Game

Posted Feb 2, 2012 18:04 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

However, to consider granting monopolies over certain patterns of thought

Right, I was not contemplating granting a monopoly over the thinking, but rather other applications of the invention such as selling of a machine that uses the algorithm. The criterion you gave for something not worthy of a patent was that it be theoretically possible to do it in your head, not that that was the only way to profit from it. I framed the question from that definition.

If you're right that monopolies are always bad, then it follows that the algorithm invention shouldn't be patentable, but it doesn't explain why there should be a patentability distinction between algorithm and not algorithm, which I think you said there should be.

But if you're right that historically inventors of algorithms have got enough value out of the first application of the invention to repay the investment and the algorithm could not be kept secret, and your implication that that is not true of other kinds of inventions, then that's a good reason for the distinction.

I'm not sure it would be easier for a judge to determine whether an invention is an algorithm or not than it would be to simply determine whether the invention meets those two underlying criteria. I thought you were alluding to some more fundamental property of algorithms. It reminds me of an argument that preference for scholarships should be given to black students because statistics show black families have less money, and the counterargument that you could do even better by just giving preference to students whose families have less money.

Software is The Glass Bead Game

Posted Feb 3, 2012 1:39 UTC (Fri) by nybble41 (subscriber, #55106) [Link]

> Right, I was not contemplating granting a monopoly over the thinking, but rather other applications of the invention such as selling of a machine that uses the algorithm.

First, though I realize this is generally overlooked, software is merely a passive description of an algorithm, qualitatively no different from the description in the patent application. A machine storing such software is qualitatively no different than the paper the patent application was written on--a medium containing a stored description of the algorithm. It is only when the machine is actually used that you could say that the algorithm is being used--by the owner or operator of the machine, not whoever manufactured or sold it.

However, we then run into the second issue: in attempting to avoid monopolizing people's thoughts, we've codified an excessively limited interpretation of the term "thinking". Increasingly, people are integrating computers into their day-to-day lives and routinely using them to aid their own thought processes. I would hate to formalize a legal distinction at this point between "thinking" which goes on entirely in one's brain and "thinking" which incorporates technology to a greater or lesser degree.

Without that distinction, however, any time a person evaluates an algorithm on a general-purpose computer they are "thinking". Ergo, if you exclude "thinking" from actions which can infringe on the patent, you are left with very little in the way of actual monopolies.

Finally, to approach the issue from a different direction, all the novelty is in the algorithm, not the machine, which is merely a general-purpose computer. In my opinion, at least, if you're not patenting the algorithm in its own right, any novelty in the algorithm shouldn't count toward fulfilling the overall requirements. That would be rather like inventing a novel kind of transistor, using it in a textbook-standard amplifier circuit, and then being granted a patent on that standard amplifier design incorporating the new transistors. (Correct me if I'm wrong, but I certainly *hope* you couldn't a patent like that...)

> ... it doesn't explain why there should be a patentability distinction between algorithm and not algorithm ...

The novelty criteria isn't limited to software patents, of course, but software patents suffer from the systemic issue that only the unpatentable abstract algorithm is actually novel--given the algorithm, a device which implements it via a general-purpose computer is nothing new or surprising. All software patents have this problem, which is why they're singled out.

> I'm not sure it would be easier for a judge to determine whether an invention is an algorithm or not than it would be to simply determine whether the invention meets those two underlying criteria.

I think you're making it sound harder to classify something as a software patent than it really is. One simple question would do: is the invention present before you load the software? If no, it's a software patent. Still, you might be right about the cost/benefit analysis being easier in some cases. Now if only patent examiners were permitted to reject applications simply because they feel the patent fails to provide sufficient public benefit... sweet, sweet chaos. I can't imagine the examiners or the applicants tolerating that degree of subjectivity. This, of course, is part of the reason inventions are classified into patentable and unpatentable subject matter.

Algorithms, as such, are already an unpatentable subject matter (math). The real question in this debate is how to interpret "novelty" and "obviousness" when patentable and unpatentable subjects are mixed together, particularly when it's just the non-patentable part which is novel or non-obvious.

Software is The Glass Bead Game

Posted Feb 1, 2012 23:25 UTC (Wed) by java_developer (guest, #82469) [Link]

What nybble41 said and also-- there is a very clear line to be drawn, it's just that you think we should not draw it. Let's just agree on that. I respect you think that the transformations provided by software should not be prevented from patentability. But let's nto say , "gooly there exists no line between software and hardware" because the EU fond it quite readily and canonized it into a set of laws that everyone understands. .

What's the POINT of patents again? Oh yeah, to serve a societal good. How does locking up things as this high a level of abstraction serve a societal good? The EU thinks UI and computer ONLY "inventions" are bad for progress. Maybe that's because those things were being invented a mile a minute- and by for profit companies too- before software patents were invented.

You know there are hypotheticals and there are things which can be proven. Of the types of proofs in the world, the strongest type is "the existence proof", which is, the thing stands before you, therefore, this proves it exists.

Progress in software and the associated user interfaces and purposes to which software is put went through a period of time when it was not patented. That would be when almost everything of interest was created including WIMP word processors spread sheets drawing programs etc etc etc.

This should be enough to PROVE that software innovation doesn't need patenting.

If you need still more proof, then the plethora of studies I've cited in this thread should be enough to prove that patenting software has deleterious effect on innovation and economic participation.

The thing stands before you, so let's not hear any arguments about "if we took patents away, no one would innovate anything!"

As far as the "proper" level of abstraction argument goes, if we're going patent slide to unlock then let's all go for it and start patenting every arrangement of all things universally. This is what IP maximalist actually want. We can patent everything to do with writing.. I know for a fact that directors have a set of tricks they use to make certain impressions on audiences.. they deliberately and specifically set about to build sympathy
for a leading characters using a certain set of techniques which can be quantified within a time-duration range and specified as clearly as any software patent.

There's a way to type at your keyboard, a way to organize people to get them to behave in certain ways, the universities are perpetually inventing new ways in which people things and animals can be arranged, coaxed, altered, influenced, and otherwise directed to some good end each of which is novel useful and advances the state of some art.

The reason we don't permit this is because if it's driven to its logical conclusion, everyone would see how ridiculous it all is. There is zero difference between a slide to unlock patent and an employee incentive scheme, a strategy to attack your competitors product line , a technique in the courtroom, a way of coordinating employee's activities.. why are we making software and computers the sole target of this "what level of abstraction" type arguments when there's an entire world of thing and activities that had formerly been free of IP constraints which are just waiting to be constrained?

You accuse us of arbitrarily setting the level of abstraction in some arbitrary place. With all due respect sir, look who's talking.

Software is The Glass Bead Game

Posted Jan 20, 2012 10:01 UTC (Fri) by jrn (subscriber, #64214) [Link]

> To use an example any child can comprehend, wooden blocks with the letters "A", "B", and "C" carved into them are hardware. The letters "A", "B", and "C" themselves are software.

So a company selling operating system CDs is a hardware vendor, I suppose.

Software is The Glass Bead Game

Posted Jan 20, 2012 15:50 UTC (Fri) by nybble41 (subscriber, #55106) [Link]

> So a company selling operating system CDs is a hardware vendor, I suppose.

Not unless they're selling them for about twenty cents each (the cost of a blank CD, plus handling). The CD is indeed hardware, but the value in this case isn't the hardware, it's the copy of the software embedded in it. The hardware is incidental to their business, and could be trivially replaced with any other convenient storage medium, or even no hardware at all (e.g. direct download).

Actually real price was something like $3-$5 at the time...

Posted Jan 20, 2012 16:02 UTC (Fri) by khim (subscriber, #9252) [Link]

Not unless they're selling them for about twenty cents each (the cost of a blank CD, plus handling).

It's not feasible to sell them for $0.2. You'll not cover even S&H costs. $3-$5 is realistic, and yes, it was done when that made sense.

Actually real price was something like $3-$5 at the time...

Posted Jan 20, 2012 16:22 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

When you buy a CD of something that you could download for free, because for whatever reason you want a CD, are you buying hardware or software? I think I'm buying hardware.

Actually real price was something like $3-$5 at the time...

Posted Jan 20, 2012 16:52 UTC (Fri) by nybble41 (subscriber, #55106) [Link]

> You'll not cover even S&H costs. $3-$5 is realistic, and yes, it was done when that made sense.

I wasn't counting shipping in the price, just the blank CD and whatever it costs to burn data onto it. Feel free to substitute a more realistic base cost; it's been a while since I priced blank CDs, and the overhead was no more than a guess. Including S&H, $3-$5 is well within the margin of error.

In the case you cited, as giraffedata pointed out, they really were a hardware & service vendor--they were paid for the CDs and the service of filling them with third-party software (plus S&H). No one would pay them for the software itself knowing that said software is available for free.

In short, if you're making a standard retail markup over the cost of manufacturing the discs, you're a hardware/service vendor. If you're making significantly more than that, then you're being paid for the data on the disc, not the disc itself, which makes you a software vendor.

This is just crazy...

Posted Jan 20, 2012 6:04 UTC (Fri) by khim (subscriber, #9252) [Link]

For the purposes of testing your invention, you use an existing, not very interesting, process to convert your software to something physical.

If this is indeed existing, not very interesting, process then the patent is not needed.

Drugs were mentioned above as patent-worthy because they are hardware. They're software.

How come?

The part where you express a drug as a pill and put it in someone's mouth is a fairly small part of the invention process; if we could download a drug into a test subject through the retina, the drug wouldn't be much less costly to invent.

The part where you express drug as a pill has nothing whatsoever to do with sane drug patents. The part which explains how drug affect the patient is what is patented (I assume there are patents which explain how you can create round, square and triangle pill - these are netirely worthless). You can not express this as math because you can not express patient as math. You can design some models, etc, but ultimately you must test your model on real patients - and this is where bulk of costs comes from.

Hardware vs software

Posted Jan 20, 2012 16:46 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

I'm not sure what your point is, since you start with "This is just crazy," then agree with most of what the parent post said.

For the purposes of testing your invention, you use an existing, not very interesting, process to convert your software to something physical.
If this is indeed existing, not very interesting, process then the patent is not needed.

Right, the inventor does not apply for a patent on that process. Mainly because the machines that fabricate the drug are already patented (they were interesting when they were new). The patent claims cover the informational inputs to that process.

Drugs were mentioned above as patent-worthy because they are hardware. They're software.
How come?

That's what the sentences after "They're software" were intended to explain.

The part which explains how drug affect the patient is what is patented You can not express this as math because you can not express patient as math. You can design some models, etc, but ultimately you must test your model on real patients - and this is where bulk of costs comes from.

And all of that applies equally (except in degree) to one-click web ordering and to ibuprofen. Which is why I say there isn't a distinction, for the purposes of this discussion, between hardware and software.

Right. Drama and prose are the same. Law and Science are the same.

Posted Jan 20, 2012 17:42 UTC (Fri) by khim (subscriber, #9252) [Link]

And all of that applies equally (except in degree) to one-click web ordering and to ibuprofen.

You may as well decree that all texts are the same. Law and science, prose and verses, patents and computer programs - they all use the same 26 letters and occasional punctuation and few foreign words. There are no difference between them (except in degree)!

Which is why I say there isn't a distinction, for the purposes of this discussion, between hardware and software.

If there are no difference then why US5960411 talks mostly about client system, server system, HTML documents and other things which have no relation to the physiology of humans at all while US5288507 talks about advatages of analgetic/antacid combination over the combination of racematic ibuprofen with an analgesic? If the patent indeed is all about how human which should react on 1-click web design then surely observations of human reactions should fill the bulk of patent? And surely "novelity" and "non-obviousness" should be related to this aspect? In particular you should concentrate on the idea that less clicks will lead to larger sales and this observation (tested in real world) should be checked for novelity and non-obviousness and computer-side architecture can be confined to non-protected examples?

Right. Drama and prose are the same. Law and Science are the same.

Posted Jan 21, 2012 19:10 UTC (Sat) by java_developer (guest, #82469) [Link]

"You may as well decree that all texts are the same. Law and science, prose and verses, patents and computer programs - they all use the same 26 letters and occasional punctuation and few foreign words. There are no difference between them (except in degree)!

You're hiding. You're driving your opponent's argument into a reductio ad absurdum while hoping no one notices that for your own argument the road to absurdum is the briefest of brief, straight shots.

For the one-click patent, no part and no combination of parts exists at a level which is not purely abstract. It's not about single clicks. It's not about clicks at all. It's about a unitary intention emanating from the user.

It doesn't require mice. It doesn't require a specific input device at all. It's about any human computer interface device which transmits a humans intention to the computer whatsoever.

It's not about the specific steps executed by the javascript code. It doesn't require any language to execute any specific instructions of any machine at all.

It's about the abstract resulting end state of a set of abstract entities irrespective of the individual steps through which that ends state was achieved or what the embodiment of the abstract entities are.

This is how things USED to work...

Posted Jan 20, 2012 5:55 UTC (Fri) by khim (subscriber, #9252) [Link]

Now, if you were to design a novel hardware *component* for use in actual, physical circuits, that would be be an entirely different matter. In that case you've invented a novel way to use the physical properties of the universe toward a specific goal. If anything justifies a patent, that would. To get to this point you have to reduce your abstract ideas to practice, i.e. actually build something, or at least show that in principle the component could be constructed from real materials.

Well, this is exactly how patent system was designed initially. Of course this approach worked poorly if someone wanted to use patents as a deterrent thus later these requirements were abandoned.