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The Supreme Court Should Invalidate Software Patents

blogs.forbes.com

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Re: The Supreme Court Should Invalidate Software Patents

#91

Post by brlewis »

kenjackson wrote: post #82
scythe wrote: post #80

Earlier quoted context omitted.

>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.

I could perform arithmetic coding with nothing but a pen and an extremely large amount of paper. 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.

According to the Flook precedent, the novelty in your invention can't merely be in the algorithm. Too bad the patent system ignores that precedent.

Re: The Supreme Court Should Invalidate Software Patents

#92

Post by kenjackson »

scythe wrote: post #90
kenjackson wrote: post #82

Earlier quoted context omitted.

I could perform arithmetic coding with nothing but a pen and an extremely large amount of paper. 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.

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

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.

Actually I don't think its technically "Turing Complete". it doesn't have unbounded tape. In fact any given ARM processor will have a fixed addressable limit. I can certainly compute a class of things in theory that the ARM processor can't compute. There are real HW considerations that you need make when you deal with an actual physical processor that don't exist in the theoretical model.

And this sidesteps questions of complexity.

But this is similar to a patent on a new wing design. You can say it is simply a mathematical model of airflow and such. But the pudding is the creation, not the mathematical model of the wing.

Re: The Supreme Court Should Invalidate Software Patents

#93

Post by o_nate »

Figs wrote: post #79
o_nate wrote: post #65

Earlier quoted context omitted.

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…

There seems to be some confusion here between the thing that is being patented and the description of the thing that is being patented. The fact that the description is written using the alphabet has no bearing on the patentability of the thing itself. No arrangement of letters in the alphabet can be patented - but that doesn't mean that nothing can be patented.

Re: The Supreme Court Should Invalidate Software Patents

#94

Post by brlewis »

brlewis wrote: post #48
Natsu wrote: post #16

Earlier quoted context omitted.

They're not making a Constitutional argument here, but suggesting that the courts fix some decades-old precedent that went astray starting with Diamond v. Diehr. That's well within the Court's powers. They created the mess, so it's not unreasonable for them to fix it. It's not as though Congress passed a law allowing software patents or something.

Not true. Diehr did not start the mess. The Diehr opinion said exactly the same thing Flook did. More to come in an essay I'm working on now.

Finished the essay: http://ourdoings.com/ourdoings-startup/2011-07-28

Re: The Supreme Court Should Invalidate Software Patents

#95

Post by smokeyj »

Daniel_Newby wrote: post #71
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…

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 chem…

> A program is a tangible, physical arrangement of electrons, atoms, and/or electromagnetic fields.

A tangible program is not what's being patented, only the concept of the program, which is not tangible. Concepts are patented, not code. Code gets copyright protection.

Similar to saying, "Hey! I thought of a cure for cancer. I didn't actually come up with a specific one, only the concept of one. If you actually come up with it, it's my property and I'll sue you if you don't recognize that.

This means that there are trivial concepts out there, that if I implement in software, I owe bank to some company. It's pretty fucked up when you think about it.

Re: The Supreme Court Should Invalidate Software Patents

#96

Post by bfe »

aroberge wrote: post #88
Daniel_Newby wrote: post #76

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. P…

This argument is simply wrong. You could use the same type of "progression" to get, at the root, basic theoretical physics or pure math. Yet, ideas and concept from these two fields are not patentable.

But his examples are all physical embodiments that perform a tangible real-world function. There's no continuous progression between those and pure math.

Re: The Supreme Court Should Invalidate Software Patents

#97

Post by binarybits »

hugh3 wrote: post #73
scythe wrote: post #63

Earlier quoted context omitted.

>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…

This ignores how the patent statute is written. Congress sets extremely broad principles for what is patentable and leaves it to the courts to work out the details. That process of interpretation inevitably involves making policy judgments.

This isn't unusual. Constitutional concepts like "reasonable search," "cruel and unusual punishment" similarly invite courts to make policy judgments.

Re: The Supreme Court Should Invalidate Software Patents

#98

Post by o_nate »

Daniel_Newby wrote: post #71
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…

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 chem…

A program is a tangible, physical arrangement of electrons

One could likewise argue that math is a tangible physical arrangement of pencil marks on a page or of neurons in the brain. But the point remains that math is not patentable.

Should someone be able to patent a prime number? Discovering a new large prime number requires effort, skill, lots of compute cycles, etc., but it's not patentable. Discovering an algorithm that has novel properties also requires effort and skill, but it shouldn't be patentable either, because it's math.

All possible medicines are implied by the rules of chemistry

Maybe eventually we'll understand the rules of chemistry and human biology as well as we understand the rules of math, but until that happens the case of medicine is not really comparable to the case of software.

Re: The Supreme Court Should Invalidate Software Patents

#99

Post by jerf »

scott_s wrote: post #77
jerf wrote: post #70

Earlier quoted context omitted.

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…

"Regarding my initial point, I think software falls under copyright solely because its written"

No. That's a degree of misconception that I can't fix in an HN post. Copyright has little to nothing to do with the medium in which an expression is fixed. And with all due respect, the rest of your post is so muddled w.r.t. what copyrights really are that it's hard to even address what's there. (I truly mean "with all due respect", but I also truly mean that it is very muddled.) You really ought to spend some more time studying the topic, including such basics as what exactly copyrights are and what, exactly, they cover, and why.

Re: The Supreme Court Should Invalidate Software Patents

#100

Post by scythe »

kenjackson wrote: post #92
scythe wrote: post #90

Earlier quoted context omitted.

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

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…

>Actually I don't think its technically "Turing Complete". it doesn't have unbounded tape. In fact any given ARM processor will have a fixed addressable limit. I can certainly compute a class of things in theory that the ARM processor can't compute. There are real HW considerations that you need make when you deal with an actual physical processor that don't exist in the theoretical model.

Obviously -- it is a finite state machine, but this doesn't mean any less that it is a theoretical model.

>But this is similar to a patent on a new wing design. You can say it is simply a mathematical model of airflow and such. But the pudding is the creation, not the mathematical model of the wing.

No -- the wing is a physical object. I can hold a wing in my hand. Conversely, a patent on a wing design does not mean that I cannot use that wing design in a computer simulation of an airfoil. But a patent on bzip does mean, supposedly, that I cannot run bzip on a virtual machine. In other words, the wing design is the point, here: you could patent a specific device for running bzip, but you cannot patent bzip on all computing devices. Which, I suppose, might help to explain my point.

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