The Supreme Court Should Invalidate Software Patents

Consider this quote from Scalia:

'You really can't judge judges unless you know the materials that they're working with. You can't say, "Oh, this is a good decision and this was a good Court," simply because you like the result. It seems to you that the person, who deserved to win, won. That's not the business judges are in.

We don't sit here to make the law, to decide who ought to win. We decide who wins under the law that the people have adopted. And very often, if you're a good judge, you don't really like the result you're reaching. You would rather that the other side had won, and it seems to you a foolish law.

But in this job -- it's garbage in, garbage out. If it's a foolish law, you are bound by oath to produce a foolish result because it's not your job to decide what is foolish and what isn't. It's the job of the people across the street.

So don't judge judges unless you really take the trouble to read the opinion and see what provisions of law were at issue and what they were trying to reconcile and whether they did an honest job of reconciling them, and if interpreting the words of the law in a fair fashion. That's what counts. Unless that's what you want your judges to do, you have a judiciary that's not worth much. You have a judiciary that is just making the law instead of being faithful to what the people have decided.'

I know this is a broad generalization but typically a conservative judge goes for strict interpretation and a liberal judge goes for desired outcome.

This is a simple minded piece. It is so riddled with half digested bs I don't even know where to start with it. I guess I'll just pick on something so blindingly obvious that anyone with more than one braincell (which apparently does not include the author) would already find beyond question.

Copyright protects the expression of an idea. This is an absolutely excellent form of protection when the expression of the idea is a huge part of its value. A piece of music, or a novel IS its expression. If you rewrite James Joyce's Ulysses in your own words you have lost Joyce's expression which is precisely what people value in the reading. Hence a work in which the expression is critical to its value is well protected by copyright.

Software is not such a work. If someone spends years refining an invention and someone else reverse engineers it and yet changes the expression of the work copyright is no protection whatsoever because no-one using the work gives a rat's ass about the underlying expression.

The idea that copyright is a meaningful protection for software is so laughable that anyone daft enough to take the idea seriously is clearly so appallingly badly informed that they don't deserve to be taken seriously.

The bottom line: Supreme Court will never invalidate software patent.

Image this if Supreme Court does invalidate software patent.

A big sticker will be on the US map and shows, “Welcome to take all software inventions you want. All my software inventions are yours. Oh. BTW, yours in your country are still yours!” You see how this affects global competitions in software and finance industries.

However, the current patent system still has room for improvements.

1. Software innovation changes too fast. The patent length should cut to 5 years (excluding the waiting time to get the patent). I have discussed this previously, http://news.ycombinator.com/item?id=2409917

2. Patent non-practicing entities (excluding public research institutions and schools) should be banned to sue anyone. However, even so Patent Trolls still know how to get around this. This just increases difficulty, but definitely won’t stop them.

3. Claim description has many ways to interpret. This is where the money is spent in litigation. If a standard structure and a list of words are allowed to be used in the software claim description, this probably makes easier and faster to find out if a software patent is valid. But I have to admit this is a hard problem to solve.

What if I was the first person to write a murder mystery in which the butler did it? Could I patent that plot device so no one else could use it?

The point of copywriting code is not because people care so much about great coding style or variable names - it's to prevent the laziest forms of copying. If someone wants to invest the time and effort to reverse-engineer and rewrite a piece of software without copying any of the original code, the cost of doing so is sufficiently prohibitive that it might be easier just to rewrite it from scratch.

I find this argument unconvincing: Second, writing software is an individual, expressive activity at least as much as it is an engineering discipline.

The implicit argument is that creating software is inherently more creative than, say, creating a mechanical device. Yes, I take enjoyment in crafting my code so that its model is no more complex than it has to be, and in refactoring the code so that it is as clear as aesthetically pleasing as possible. But I imagine that people who design physical items feel the same way about their work.

Please note that I am not disagreeing with conclusions - I have said nothing about his conclusions. But I think the overall argument is stronger without this one. With it, it feels like he started with a conclusion, and used whatever arguments lead to that conclusion.