The Supreme Court Should Invalidate Software Patents

BUT a pen and paper. A patent wouldn't be just the algorithm, but also a writing device and paper.

Everything is a theoretical until you do it in practice. You can't patent a cool 3D rendering algorithm. But you can patent a device that uses it and renders the output to a computer screen. This is how patents are written.

There is extensive literature (a subset of "legal realism" which accounts strategically for judicial action) which claims that judges do in fact incorporate policy considerations in decision-making. Secondly, it's widely acknowledged that the court frequently and with considerable influence advises Congress to change the law. In that context, it might be fine & useful for this article to speak in policy terms to the Court.

So when I hear engineers say they like patents, first of all I assume that they've never worked for a company that's been sued for patent infringement (and that they optimistically assume it only happens to other people), but then I try to find out why they don't think copyright protection is enough. Someone still can't legally steal your code without patent protection, because it'll be protected by copyright and trade secret protections. Even if they didn't copy your code, but they looked at it prior to implementing their own version, that would violate trade secret protections.

In that respect, software is protected the same way that authors and musicians are protected. Authors invent characters, plots, worlds, objects, even words, but they don't get to patent them. And yet they're still protected from theft by copyright protections; you also can't just go and make a movie out of someone else's book without permission, though you can certainly make one that's similar. If it's good enough for authors and musicians, why isn't that good enough for software developers?

So to sum that up: software development involves a creative act that deserves protection, but that's different than saying that the creative act deserves patent protection, which legally enjoins anyone else from independently developing the same thing, and which gives person A the legal right to take away the work that person B has done completely independently (or at least take away any money they've made from it and prevent them from selling it in the future). To justify taking away someone's work like that, you have to either be sure that the work is a copy or derivation of the original, which is almost never the case with software patent lawsuits, or you have to argue that even though it's unfair to deprive people of their work like that, that the benefits of the overall system are positive to society. That's an easier argument to make if 1% of patent lawsuits deprive people of the product of their independent work, but it's a pretty hard argument to make when 99% of them do.

Well, yes, and if the patent says "a writing device and paper" it might be valid, because paper is a specific construct, and the patent obviously does not cover such things as e.g. a piece of cloth.

Why do you use bzip2 and not bzip? Well, because arithmetic coding is covered by a supposedly valid patent. However, bzip can be executed by hand, or on any multitude of devices satisfying the requirements for Turing-completeness. The idea that a patent should preclude the writing of bzip, a purely mathematical construct, is absurd. bzip runs on an abstract device.

You could, for instance, specify a specific processor in the patent, but this is not done. You could not, however, specify a processor architecture, because this is also a mathematical construct, which can be carried out on paper.

Let me give you an example: My uncle knows that a cell phone is a computer. How? Well, I told him, and I'm a researcher. How do I know? Well, originally, some professor told me, and he's a professor. How does he know? Well, he or his colleague studied the literature indicating that an ARM processor is Turing-complete... which, at the end of the day, is a totally mathematical consideration, independent of the physical world except perhaps the brains which analyze it.

>But you can patent a device that uses it and renders the output to a computer screen.

No, because each independent part of this is some prior art. The representation of data on silicon is long since public domain, the display of silicon data on a screen is long since public domain, the x86 architecture and the GPU architecture are mathematical, and the algorithm itself is mathematical, and the combination of these is not itself novel or interesting: it is not even performed except by the end user, who must merely double-click a game icon and shuffle some bits around with a mouse.