Robert Pogson

One man, closing all the windows.

IBM on The Wrong Side of Software-Patents Issue

technology

IBM on The Wrong Side of Software-Patents Issue

A company as productive of real inventions as IBM should be ashamed to support software-patents but that’s what they do in a recent amicus brief:
“That the vast majority of computer-implemented inventions are patent eligible is beyond debate. Computer-implemented inventions are the lifeblood of the innovations that created the Information Age and are on par with the most ingenious inventive acts that mankind has ever known.

if that invention’s functionality requires computer implementation, this would counsel in favor of patent eligibility”

see Groklaw – CLS Bank v. Alice – Some Amicus Briefs ~pj.

They proceed from begging the question to blatant error in logic. I hope this is just the vomit of one of their lawyers and not the philosophy of the corporation… otherwise, IBM is doomed to sue and be sued forever.

Certainly software is an important part of most modern technology but it is not an invention any more than a poem is an invention. Any sequence of characters that fits the syntax of a programming language is software but it is not patentable. It is a copyright-protected work. Just as one cannot patent a novel. One cannot or should not be able to patent software. That is an error which has cost the world’s economy many $billions for no increase in productivity whatsoever. One can neither patent the abstract ideas of a novel nor the particular text used to express those ideas.

No invention can require implementation in software. Anything that can be done in software could be done with human thought or pencil and paper given enough time. It is not patentable to claim use of computers to make processes faster because that is obvious to say the least. Neither is an “invention” using an IBM mainframe patentable because it uses a mainframe instead of a pocket calculator. That’s just silly. There’s no innovation in time. It’s just an abstract quantity. Nature does not worry about time. A billion years is the same as a nanosecond to Nature. A muscular axeman is not an innovation over a frail axeman, just an obvious choice to increase production.

It is doubtful that the present en banc hearing will accomplish much except to take the issue one step closer to serious examination by SCOTUS. I await the happy day when SCOTUS announces the emperor of software patents has no clothes, something children have known for years because children are not confused by layers of abstraction as are some lawyers considering technology. Adding layers of abstraction does not make a new process patentable. It’s still an abstract idea, explicitly excluded from patentability. Computers and software do not make new machines. That’s an old idea. We’ve been there and done that for decades.

The Internet Retailers’ amicus brief says it all:
“The mere presence in a claim-whether directed to a method, system, or storage medium-of a “computer” or “the Internet” does nothing to concretize an abstract idea. The idea of displaying photographs of products for sale adjacent to text describing those products (a/k/a a catalog) is not made less abstract by reference to implementation “on a computer” any more than it would be rendered less abstract by reference to it being implemented “on paper.” Computer implementation must add something more, and more specific, before it can be considered relevant to resolving the patent-eligibility question. In this regard, computer-implementation is neither a different nor special mode of implementation entided to greater judicial deference than others….”

2 Comments

  1. George Hostler

    Sadly, I view it as a way for the rich man (or large company) to oppress the poor man (or small company, shop, etc.). I think that the government have forsaken its responsibility with protecting the smaller entities or individuals from the larger entities such as the wealthy or corporations.

    I used the XOR function using bit masks while working for aerospace in the 1980′s, to quickly discern bit mapped channel types for data acquisition and load servo control systems for a manufacturer’s minicomputer based systems.

    Not long ago I was surprised that there was a software patent approved by USPTO on the use of the XOR function, which is ridiculous.

    Some time back I did a little reading and found that UK only allowed software in patents if it was a specific component included with a concrete, physical invention. I think that train of thought was more balanced, sane.

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