Banning SW patents disables patent system?

Posted Nov 15, 2010 7:19 UTC (Mon) by bojan (subscriber, #14302)
In reply to: Banning SW patents disables patent system? by FlorianMueller
Parent article: Red Hat's Secret Patent Deal and the Fate of JBoss Developers (Gigaom)

"Common sense" I talked about is the interpretation of current law, which does not allow patents on maths. It has nothing to do with any beliefs I hold or any dogma. It is just that when the precedent was set, this cardinal rule was thrown out.

In terms of policy making, in a democracy, citzens vote, not businesses. Asking businesses what they want has some merit, but ultimately governments govern in the interest of general public. As I already explained (multiple times), the change will have to come from general public. We are probably too far away from that point right now, because other, more pressing issues are on people's minds. And in the end, people deserve the government they get.

Banning SW patents disables patent system?

Posted Nov 15, 2010 7:45 UTC (Mon) by FlorianMueller (guest, #32048) [Link] (5 responses)

Your clarification is helpful per se, but those two things (interpretation of current law and new legislation) aren't nearly as separate as you suggest.

The judges don't do anything illegal and not even a "contra legem" (against the law) interpretation here -- not in the US, and not even in Europe. They just interpret very narrowly the existing exclusions you refer to. Just like you, I would like to see them interpret them more broadly. But the way this system works is that if the law leaves wiggle room to the judges and the sovereign (We, the People) doesn't agree, then the law must be modified to the effect that there's less wiggle room and that undesirable interpretations of the law come to an end.

Banning SW patents disables patent system?

Posted Nov 15, 2010 8:09 UTC (Mon) by bojan (subscriber, #14302) [Link] (4 responses)

Lawyers are not engineers, so they are not all that precise. In mechanical engineering, for instance, you cannot fit a steel machine part that is 1 mm too thick into that smaller hole - it just doesn't fit. Lawyers have no such problems - legal arguments are more open to, shall we say, stretching.

However, along the way they sometimes open themselves up to critique from us engineering types, who find that some of their rulings violate the very principles they are supposed to be upholding. They use fancy words to explain such positions, in the process redefining what maths is etc. But it all boils down to one thing - who or what are they doing this for.

My only hope is this: what used to be generally acceptable some years ago is challenged today. What is acceptable today will be challenged in the future. I am an optimist: I believe societies do become more free over time.

Banning SW patents disables patent system?

Posted Nov 15, 2010 8:13 UTC (Mon) by FlorianMueller (guest, #32048) [Link] (3 responses)

Again, I'd like to see the same outcome as the one you outline. But let me correct you on lawyers not being engineers. I know many patent lawyers with an engineering background, such as @BytePatent on Twitter who did assembly language programming back on the Apple ][. Where I live, patent attorneys need to have a full engineering degree and then they get three years of legal studies on top. Also, in my country, the Federal Patent Court has many technical judges: engineers who act as judges. And nevertheless they grant software patents.

Banning SW patents disables patent system?

Posted Nov 15, 2010 8:34 UTC (Mon) by bojan (subscriber, #14302) [Link] (2 responses)

It is not their education that is making them one type or the other. In law, you don't have to obey the laws of physics! So, ever so slightly, lawyers bend the meaning of words until they bear little resemblance to what they were supposed to mean. A person practicing engineering cannot afford any such thing. If I stuff NULL into a pointer and attempt to dereference it, I'll get a segfault - that is a certainty.

Banning SW patents disables patent system?

Posted Nov 15, 2010 8:35 UTC (Mon) by FlorianMueller (guest, #32048) [Link] (1 responses)

The law isn't binary. It's more like fuzzy logic.

Banning SW patents disables patent system?

Posted Nov 15, 2010 9:29 UTC (Mon) by bojan (subscriber, #14302) [Link]

Yes, a little bit too fuzzy. So, we get things like maths != maths :-)