The FSF needs pragmatism [LWN.net]

The FSF needs pragmatism

Posted Jun 28, 2010 23:56 UTC (Mon) by ramon_garcia (guest, #67060)
Parent article: Bilski: business as usual

The correct way of attacking software patents is by the balance between the effort to obtain the invention and the blocking effect of the patent. And that anything creative can be regarded as non-obvious and thus patentable even if the cost is hours. You can see the discussion with the head of the UK patent office (during the debate about software patents in Europe).

By insisting in the simplistic speech that software patents are bad, and hoping to demonstrate it by repeated assertion, the FSF will convince nobody. They seem to attempt to protect themselves against critical thinking.

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The FSF needs pragmatism

Posted Jun 29, 2010 0:00 UTC (Tue) by coriordan (guest, #7544) [Link] (9 responses)

Hi,

I wrote FSF's amicus brief. It's here:
http://endsoftpatents.org/amicus-bilski-2009

Can you point out where our argument is based on repeated assertion?

The style I was aiming for was to point out real world harm, and to end with quotes from others who support this.

The FSF needs pragmatism

Posted Jun 29, 2010 3:28 UTC (Tue) by ccurtis (guest, #49713) [Link] (7 responses)

Hello,

I just now read through your brief and thought I'd share my thoughts. Firstly, I think you started out really strong - I liked the tie ins to the various constitutional principles. However, I started to fade about the time you were talking about Apache. Perhaps lawyers have a stronger constitution for reading this sort of thing, but this section seemed to go into too much detail - I started to ask myself what any of this had to do with the case at hand.

I think your comment about not being able to play videos and DVDs because of a patent (or fear thereof) was not persuasive. I would expect that this could be used as an argument in favor of patents, as should be clearer shortly.

I liked the reference to the quote by Bill Gates. I akin this to the MAD policy under Reagan (Mutually Assured Destruction). Whether or not this is a persuasive argument against patents I cannot say ("MAD helped us 'win' the cold war...") but the result is the same: a very expensive perpetual stalemate. It is a topic probably best avoided.

I didn't notice anything about NPEs or "patent trolls". I realize that this is not a new problem, but given the amount of time spent discussing Microsoft's patent stance they seem to fit in well with the general theme of leeching profits while producing nothing.

Now, with respect to the while patent thing in general, here's the problem I see: Basically, the only thing the U.S. produces any more is "IP". The country is deeply in debt and really needs some way to ensure that capital keeps flowing into the U.S. We (U.S. Citizens) excel at producing this "innovation" stuff, but with China producing all the tangible stuff, we have to erect these elaborate global IP barriers so we can still get paid. The only other thing we export is Hollywood movies so keeping tight control on who can watch what when may very much be in national interests - however that control is achieved. (Naturally, China doesn't really care too much about our self-asserted IP rights, anymore than the early U.S. did with Britain's, thus ACTA &c.)

So, unless I'm really off my rocker, it's this fairly critical issue that needs to be addressed whenever talking about getting rid of software patents. If we could somehow show how a foreign company - a foreign NPE perhaps - could single-handedly shut down the entire U.S. software economy through these ridiculous patents, then people may actually start to care. I think the RIM fiasco nudged us a bit closer to that point, but it was too short-lived and congress' memories are short.

Now, in a separate vein of thought, I was very confused about the "as a whole doctrine" sections. I may need to read it again when my head is clearer, but it would seem that if "as a whole" applied to software patents, then the software alone would be safe from infringement claims - it would be the end user who assembles the final device who would be liable. No?

The FSF needs pragmatism

Posted Jun 29, 2010 3:34 UTC (Tue) by dlang (guest, #313) [Link] (4 responses)

what makes you think that foreign companies are going to respect US patents for products sold anywhere but in the US?

they already completely ignore copyright (not just P2P but full-blown commercial copying and retail levels.

The FSF needs pragmatism

Posted Jun 29, 2010 4:09 UTC (Tue) by ccurtis (guest, #49713) [Link] (3 responses)

Are you talking to me? You commented as though you are. My post was rather long, can you quote the part you're responding to? Thanks.

The FSF needs pragmatism

Posted Jun 29, 2010 5:14 UTC (Tue) by dlang (guest, #313) [Link] (2 responses)

I was replying to your 5th paragraph where you say that the only think the US develops is IP and we need protections to make sure that we get paid.

The FSF needs pragmatism

Posted Jun 29, 2010 16:30 UTC (Tue) by ccurtis (guest, #49713) [Link] (1 responses)

I don't want to stray too far from the topic at hand so apologies beforehand if this comes across as terse or rambling:

Consider paragraph 5 as what the supremes (or at least the politicians in congress) are thinking, and as what needs to be addressed in order to affect software patent change.

Unfortunately, software is thought of as "IP", which includes such dissimilar concepts as trademarks, copyrights, and patents. This puts software in the same category as books, music, movies, and other "concept property" - which have the backing of organizations like Disney, the MPAA, RIAA, and other groups who will fight mercilessly against any perceived weakening of their positions in these fields.

Today, this group would also include Monsanto (gene patents, BT, etc.) and tomorrow there will be even more powerful companies with close ties to legislators working to strengthen these "protections".

To your question "Do I think other countries care about these US laws?" Of course not, and to which I clearly stated that China does not. And also said, "thus ACTA" (via the WIPO and WTO). The goal is simply to brow-beat the world into conforming with US protectionist measures.

To cmccabe, yes, I do understand that the U.S. is still a major exporter. But these guys in government are old. They remember huge factories in the U.S. and tangible exports of commodity goods. Vast numbers of these factories now sit idle, rotting away. Virtually any consumer product bought in stores here is made in China - from television sets, to computers, to cell phones, or to any Apple product.

So what is replacing those factories? Software. Movies. Genetic Engineering. Nanotech. In the US we still design and innovate, but as soon as something is ready for market, production is shipped overseas. And what are we left with? These intangible ideas. But the ideas get shipped away along with the ability to produce the goods.

So what do people use to keep their revenue streams? "IP Protection". Because, clearly -- if we tell someone they can't do something, then they won't. (... not). So this huge convoluted web is formed where countries get punished for "stealing" ideas that were GIVEN to them so they can produce goods. It's insanity.

The only thing really protecting U.S. ideas for goods shipped overseas is marketing. Why do people buy Apple? Marketing. Why Microsoft? Marketing. Why buy a name brand toothpaste when the exact same factory also produces a store-brand knockoff for 1/3 the price? Marketing.

So am I claiming that the solution is for software people to improve their legal marketing? I make no such claim, but it can't hurt.

Perhaps the right thing is to show that software clearly -- clearly -- does not belong with these other concepts. I believe the same argument for software should hold for biology, so there may be common ground with those fighting gene patents. Ultimately both of these are "programmable logic" fields not dissimilar from the "logic" and "mathematics" fields.

One problem we have to address, I think, is that, for example, chemistry is discovery, but applied chemistry creates novel (patentable) materials. Biology is discovery, but applied biology can create novel life features (right now we're at the cut-n-paste stage, but eventually biology will be used to manufacture novel things ... like trees that breathe carbon dioxide and exhale bicycles or gasoline). Applied logic/mathematics is software. Certainly there is novelty in this: the first spreadsheet program, for example. Why should this not be worthy of patent protection?

Now, this is a huge topic better suited for other venues, but just some random data follows. Hollywood makes about $10 billion annually, both in domestic and foreign sales [1]. This accounts for about 1% of U.S. exports, which are about $100 billion a month [2].

Exports related to computers have about doubled since 1989 (= ~10% of exports), while gross exports (non-inflation adjusted) have tripled (now = ~7%). I don't know how movies are categorized (X40140 appears to be 1/2 the reported number) but that number has increased ~4x, and they are "well protected" IP-wise, thanks to CTEA, etc. And ergo, better protection = more $$.

But on the flip side of things, the FTC has said, effectively, that they do not care about a company's patent rights [3] - refusing to allow them to raise their prices. The patent is still valid, but the patent holder's rights have been limited. I don't know how this case has progressed through the courts, if at all, but it would be a very interesting ruling if upheld.

[1] http://www.thefreelibrary.com/Hollywood+closes+off+record...
[2] http://www.bea.gov/agency/uguide1.htm#_1_19
[3] http://www.theregister.co.uk/2008/01/24/ftc_stomps_patent...

The FSF needs pragmatism

Posted Jul 8, 2010 23:37 UTC (Thu) by Wol (subscriber, #4433) [Link]

Why shouldn't the first spreadsheet be patented?

That's actually easy to answer. All it is is a ledger book (the idea dates from the 1800s, if not earlier) done using a computer.

Where the novelty lies is in all the naysayers saying "it can't be done", and the visicalc guy (can't remember his name) pulled it off. HOW he did it might be protectable, but that's subject to protection under copyright, not patent.

At the end of the day, software is maths. The program (as supplied on tape, floppy or CD) is just one big number. And if you combine that with a general purpose computer to make a word-processor, or spreadsheet, or database, the result is not (or shouldn't be!) patentable.

If you've got dedicated hardware (like a crypto-chip, say) then yes, patent the cryptochip. But if someone then makes an emulator that runs on a pc, tough. They've worked round your patent, as the patent system quite clearly says is legit.

Cheers,
Wol

The FSF needs pragmatism

Posted Jun 29, 2010 9:33 UTC (Tue) by cmccabe (guest, #60281) [Link]

> Now, with respect to the while patent thing in general, here's the problem
> I see: Basically, the only thing the U.S. produces any more is "IP".

The U.S. exports a lot of things that are quite tangible. And a lot of the most useful and best ideas can never be property. Basic scientific research is rarely patentable because it can't pass the machine or translation test.

Usually the "intellectual property" embedded in devices, websites, and organizations doesn't make sense outside the context it was developed in. It often doesn't need to be protected because unless you can duplicate that context, it is useless to you.

The FSF needs pragmatism

Posted Jun 29, 2010 16:57 UTC (Tue) by coriordan (guest, #7544) [Link]

> ... this section seemed to go into too much detail ...

That's a question for an expert, so I consulted two lawyers specialised in the Supreme Court. One said "short and readable" and the other said "list every possible thing that could give them a reason to listen to you" :-/ We already had a long text already partly written, so we used it.

> I didn't notice anything about NPEs or "patent trolls".

Our corporate allies (Red Hat and kinda Google) and our corporate enemies (IBM and Microsoft) are the main victims of trolls. They're already working on a solution (the Patent Reform Act). If I was writing the only amicus brief, then I would have worked this point, but in the actual context it wasn't necessary since others would do it more authoratively.

But, who will point out the issue of individuals, low-cost SMEs, and communities of developers needing to be free to write and distribute software? That's where we could make a needed contribution.

> Now, in a separate vein of thought, I was very confused about the "as a whole doctrine" sections.

If the patent is "software on a (standard) computer", then the computer should be separated out because it's non-innovative and only contributes "insignificant post-solution activity". Then you're left with software, and there's the possibility that it will be found to be a non-patentable abstract idea. The problem is that the CAFC ignored the "insignificant post-solution activity" and so applied "as a whole" to indescrimiately, which means that the computer won't be separated out. The inclusion of something you can drop on your foot (a computer), makes it almost impossible to reject the claim as being just an abstract idea.

> it would be the end user who assembles the final device who would be liable. No?

The separation mentioned is for the examiner to decide if the patent is valid in the first place. If they don't approve the application, then it can't be infringed by anyone.

The FSF needs pragmatism

Posted Jul 8, 2010 10:32 UTC (Thu) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> I wrote FSF's amicus brief.

The name "Jerry Cohen, Esq." appears in the text. There are some parts I find a bit odd, did he not at least comment on the text before submitting it?

The FSF needs pragmatism

Posted Jun 29, 2010 0:28 UTC (Tue) by dlang (guest, #313) [Link]

one good thing about this decision is that the court does recognize that there is tension between patents and infringing on the public domain (their words) and that in this era where there are ever more innovators care needs to be taken to not hurt

quote: This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.

this is at least recognizing that there is a issue here, which most of the pro-patent people would like to pretend didn't exist (that everything should be in favor of the first person to get a patent)