The Supreme Court Should Invalidate Software Patents • Hacker News Board

Re: The Supreme Court Should Invalidate Software Patents

#61

Post by scythe » Thu, Jul 28, 2011, 9:31 PM UTC

kenthorvath wrote: post #12

tsotha wrote: post #3

Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.

I'm not so sure this isn't a constitutional question. In Article I, section 8, the U.S. Constitution: Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Note that Congress is only given this power in order to promote the progress of science and useful arts. If one c…

The Supreme Court does not evaluate the intention of a law. Remember, the very process of judicial review was introduced after the Constitution was written, so the parts of the Constitution where it explains why it is written the way it is are rather clearly not policies.

That said, Title 35 of the United States Code states:

>Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

It is difficult to see how software patents could really fall under this. I don't know of any software patent describing a "process" which is not simply a mathematical algorithm (unpatentable), and they certainly don't describe a machine, manufacture, or composition of matter.

The patent described in Diamond v. Diehr is really not at all what we would today consider a software patent; it's not really similar to the patents on, say, wavelet compression in any sense beyond "there's silicon involved". It was a process of molding synthetic rubber, not pushing bits around.

Re: The Supreme Court Should Invalidate Software Patents

#62

Post by brlewis » Thu, Jul 28, 2011, 9:33 PM UTC

petegrif wrote: post #53

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 id…

Copyright protects translations and adaptations too.

Re: The Supreme Court Should Invalidate Software Patents

#63

Post by scythe » Thu, Jul 28, 2011, 9:33 PM UTC

timsally wrote: post #17

It's not up to Justice Scalia to do the right thing. It's up to Congress. As Scalia is so fond of saying, garbage law in, garbage decision out. Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us. I'll preempt the constitutional argument by saying that hasn't been made yet. You underestimate how strong such an argument has to be to succeed. What SCOTUS could clarify…

>Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us.

Congress never passed a law allowing software patents, though. It was the courts (but only the lower courts, never the Supreme Court) which historically interpreted the old patent laws (written before the age of computers) to apply to software -- I don't know of any parts of Title 35 which cover software specifically. Congress could modify the law to explicitly allow software patents, but they haven't.

Re: The Supreme Court Should Invalidate Software Patents

#64

Post by scythe » Thu, Jul 28, 2011, 9:34 PM UTC

benihana wrote: post #60

wccrawford wrote: post #39

Earlier quoted context omitted.

"Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us." Actually, that's exactly how the system works. Check and balances.

Checks and balances, not sharing of responsibility. The Supreme Court exists to protect Americans from unjust laws, not to write laws that congress should be writing.

    s/unjust/unconstitutional/g

The Courts serve justice, but it is a legal justice, not a philosophical ideal.

Re: The Supreme Court Should Invalidate Software Patents

#65

Post by o_nate » Thu, Jul 28, 2011, 9:37 PM UTC

qq66 wrote: post #58

o_nate wrote: post #49

Earlier quoted context omitted.

A program is pure math - the fact that a computer takes certain actions on the basis of the math doesn't change that. In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet. Like novels, programs should be copywritable bu…

By that rationale, any physical object that is produced by a specified process is pure math. Ergo, no patents for physical products either. That might be your position, can you clarify?

How could a physical object be pure math? Even if you could completely mathematically specify the process of creating the object, that only means you couldn't patent the specification itself - the object would still be patentable.

Re: The Supreme Court Should Invalidate Software Patents

#66

Post by CDRdude » Thu, Jul 28, 2011, 9:37 PM UTC

prayag wrote: post #52

wccrawford wrote: post #39

Earlier quoted context omitted.

"Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us." Actually, that's exactly how the system works. Check and balances.

Not really. The court interprets the law as written by the congress. There are always some checks and balances while interpretation but that's not what the court is for.

Is that accurate in this case? My understanding is that the majority of the time, SCOTUS interprets the constitutionality of laws.

Re: The Supreme Court Should Invalidate Software Patents

#67

Post by prayag » Thu, Jul 28, 2011, 9:46 PM UTC

CDRdude wrote: post #66

prayag wrote: post #52

Earlier quoted context omitted.

Not really. The court interprets the law as written by the congress. There are always some checks and balances while interpretation but that's not what the court is for.

Is that accurate in this case? My understanding is that the majority of the time, SCOTUS interprets the constitutionality of laws.

In many cases the any court (in almost any country influenced by the French law) interprets the laws and confirms if the 'new laws' is consistent with the 'old laws/ more basic laws' and not in violation with the basic premise of the constitutions. Of course this is a over-simplification but this is at the most basic the function of the courts.

Re: The Supreme Court Should Invalidate Software Patents

#68

Post by Finbarr » Thu, Jul 28, 2011, 9:52 PM UTC

I've been thinking this a lot recently. You can't patent software in the UK and it seems ridiculous that you can in the US.

Re: The Supreme Court Should Invalidate Software Patents

#69

Post by kenjackson » Thu, Jul 28, 2011, 9:56 PM UTC

scythe wrote: post #61

kenthorvath wrote: post #12

Earlier quoted context omitted.

I'm not so sure this isn't a constitutional question. In Article I, section 8, the U.S. Constitution: Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Note that Congress is only given this power in order to promote the progress of science and useful arts. If one c…

The Supreme Court does not evaluate the intention of a law. Remember, the very process of judicial review was introduced after the Constitution was written, so the parts of the Constitution where it explains why it is written the way it is are rather clearly not policies. That said, Title 35 of the United States Code states: >Whoever invents or discovers any new and useful process, machine, manufacture, or compositio…

Any process is arguably a mathematical algorithm. The process by which I sanitize water can be expressed as a mathematical algorithm, where the various components play the role of various mathematical constructs.

And therein lies the problem. If you read SW patents they're usually pitched as processes over a computer device. This makes it hard to untangle from any other process that acts over some matter.

With that said maybe we get rid of processes altogether. I'd say get rid of everything except drug patents. But that would require congress to sign off.

Re: The Supreme Court Should Invalidate Software Patents

#70

Post by jerf » Thu, Jul 28, 2011, 9:59 PM UTC

scott_s wrote: post #59

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…

Actually, you can sort of formalize the argument: Software is eligible for copyright. Therefore, the law already recognizes that it is an expressive activity.

A mechanical device is already not eligible for copyright.

Software is the only thing I know covered by both patents and copyright. Sometimes people deny this to me when I say this online, but I haven't yet heard anybody come up with a concrete example that stood up to scrutiny. Is it really so stunning that two systems never designed to mesh, patents and copyright, turn out to in fact not mesh and produce a big mess? Is it really so horrible that software be only copyrightable and not patentable? Very few people are arguing that software should not be covered by any sort of IP protection, and I suspect the non-zero set of such people would be further shrunk if patents were removed from the equation. (Though I also guarantee, not eliminated.)