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The Supreme Court Should Invalidate Software Patents

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Re: The Supreme Court Should Invalidate Software Patents

#71

Post by Daniel_Newby »

o_nate wrote: post #49
chc wrote: post #27

Earlier quoted context omitted.

As much as I'd like it to be true, I can't help but find this line of reasoning a bit specious. As Simon Peyton-Jones is fond of pointing out with regards to Haskell's functional purity, a program that is just pure math won't do anything except make your computer heat up. Math doesn't write files, it doesn't draw on a screen, it doesn't send packets across a network. Am I wrong somewhere in there?

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…

A program is pure math ...

A program is a tangible, physical arrangement of electrons, atoms, and/or electromagnetic fields. Just because it is easily rearranged and difficult to perceive with the naked eye does not make it mathematical or virtual or unreal.

In a sense, all possible computer programs for a given architecture are implied in that architecture, ...

All possible medicines are implied by the rules of chemistry obeyed by a liter of pond scum. Determining which potential medicine does what is a patentable invention.

Re: The Supreme Court Should Invalidate Software Patents

#72

Post by scythe »

kenjackson wrote: post #69
scythe wrote: post #61

Earlier quoted context omitted.

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 s…

>If you read SW patents they're usually pitched as processes over a computer device.

The problem is that a computer is itself a mathematical construct. If the patents really wanted to describe a process on a device, they could not use as their "device" a Turing machine, because that is not a physical device in the sense of water sanitization. Whereas water sanitization requires the physical presence of water, a program can exist totally in theory as some bits in Wolfram's 2-state-3-symbol.

That is, unless you believe the mathematical universe hypothesis, but I don't think the Court's job is to decide whether the Universe exists!

I am also not a lawyer, nor formally educated in the field of law. I do know a bit about theoretical CS, though.

Re: The Supreme Court Should Invalidate Software Patents

#73

Post by hugh3 »

scythe wrote: post #63
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 specific…

Nonetheless, there are two separate and completely orthogonal questions here.

1. Is it good policy to allow software to be patentable, and

2. Does existing law allow for software to be patentable?

I am fairly agnostic on question one, and about three Juris Doctorates short of being able to answer question two, but it's the Supreme Court's job to answer question two without any regard whatsoever to question one.

This article appears to be arguing about question two based on his opinions on question one, which is like arguing that a cat is a handbag because you want to be able to take it as carry-on luggage.

Re: The Supreme Court Should Invalidate Software Patents

#74

Post by kenjackson »

scythe wrote: post #72
kenjackson wrote: post #69

Earlier quoted context omitted.

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 s…

>If you read SW patents they're usually pitched as processes over a computer device. The problem is that a computer is itself a mathematical construct. If the patents really wanted to describe a process on a device, they could not use as their "device" a Turing machine, because that is not a physical device in the sense of water sanitization. Whereas water sanitization requires the physical presence of water, a progr…

Computers aren't mathematical constructs. They're simply devices, like a water bottle. But what they can compute, at least as best we understand it, is bound by what is computable by mathematical constructs, such as the lambda calculus.

But with things such as DNA computers and nanotechnology, could one argue that the universe is a computer? Can everything just be described as a construction of objects in the real world with stimuli applied to it?

To me it just feels like a really slippery slope. Just say "medical drugs" and leave it at that.

Re: The Supreme Court Should Invalidate Software Patents

#76

Post by Daniel_Newby »

This will never happen.

Consider a mechanical timer in a washing machine. A timer that produces a novel washing cycle is certainly patentable.

Consider a chain of electromechanical relays that produces the same cycle. Clearly it is just as patentable, and could be covered by a well-written version of the preceding patent.

Consider the transistorized version of the preceding, with the relays replaced by transistors. Patentability: ditto.

Consider a mask-programmed processor that produces the same cycle. (Mask-programmed means the program is hardwired into a metal pattern.) Patentability: ditto.

Consider a flash-programmed version of the preceding that produces the same cycle. Patentability: ditto.

Consider a volatile memory version of the preceding that produces the same cycle. Patentability: ditto.

Why does this matter? Because in the coming age of nanomachines, "software" will frequently be embodied in custom mechanical machines, chemical reactions, interference patterns of light, and so forth. If software is unpatentable, then neither can you patent the special sauce that turns dirt into nanomachines.

Re: The Supreme Court Should Invalidate Software Patents

#77

Post by scott_s »

jerf wrote: post #70
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 sto…

Regarding my initial point, I think software falls under copyright solely because its written - I don't know if that's the argument now, but I imagine that was at least the initial reason for granting copyrights. Personally, I can find no meaningful difference between designing software and designing a mechanical device. For that reason, I don't like that argument.

Your main point is interesting, but I'm not sure if I can completely go along with it. Consider, say, a mechanical latch. The design schematics for it fall under copyright. The latch itself falls under patent. The process for making the latch is to look at its design, and change your tools around to produce something of that design. Looking at it this way, I can see how software could be considered its own design schematic - yes, I'm aware that external documentation exists, so it's not a perfect analogy. But with software, there's no separation between "thing used to describe what should happen" and "thing that happens."

I want to agree with your argument because it would provide a clean solution to the problem, but I don't think I can. Rather, I think the solution to the problem may require a results-oriented approach. That is, it may require us (as a society) to say, "The current patent scheme regarding software is harming innovation. We are going to change how patents apply to software to avoid this harm."

Re: The Supreme Court Should Invalidate Software Patents

#78

Post by MetaMan »

As a software programmer I don't agree with this view that software patents are wrong in principle. There I said it!

Software just as much as hardware can be used to "express" something new. I.e. to invent something.

An patentable invention is a novel "solution to a problem which is NON-OBVIOUS to someone skilled in the art".

The real issue with software patents is that they are granted far too easily. The test that seems to be applied by the patent examiners is "is that new?". However, they should be asking "given the problem the inventor is trying to solve is the solution (the invention) really non-obvious to some one skilled in the art?".

However, even though I think that software patents, with the proper examination standards are just as valid as hardware patents I think there is a case for limiting (or even banning) ALL patents - NOT just software patents.

One idea would be the requirement that a working prototype has to be produced and seen to be working. That, along with a proper non-obviousness test, would limit companies going for patent "land grabs".

Re: The Supreme Court Should Invalidate Software Patents

#79

Post by Figs »

o_nate wrote: post #65
qq66 wrote: post #58

Earlier quoted context omitted.

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.

"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."

Surely you realize that all possible patents are implied by the alphabet in precisely the same manner that all possible novels are implied by the existence of the alphabet...? :)

Re: The Supreme Court Should Invalidate Software Patents

#80

Post by scythe »

kenjackson wrote: post #74
scythe wrote: post #72

Earlier quoted context omitted.

>If you read SW patents they're usually pitched as processes over a computer device. The problem is that a computer is itself a mathematical construct. If the patents really wanted to describe a process on a device, they could not use as their "device" a Turing machine, because that is not a physical device in the sense of water sanitization. Whereas water sanitization requires the physical presence of water, a progr…

Computers aren't mathematical constructs. They're simply devices, like a water bottle. But what they can compute, at least as best we understand it, is bound by what is computable by mathematical constructs, such as the lambda calculus. But with things such as DNA computers and nanotechnology, could one argue that the universe is a computer? Can everything just be described as a construction of objects in the real wo…

>Computers aren't mathematical constructs.

A particular computer is not a mathematical construct. The concept of a computer, however, is a mathematical construct; there are no physical characteristics necessary to identify something as a "computer" for the purposes of e.g. arithmetic coding. I could perform arithmetic coding with nothing but a pen and an extremely large amount of paper.

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