Banning Software Patents

Governments shouldn’t have to do this. It’s obvious that software is obvious and subject to copyright. Software has to be obvious or stupid computes wouldn’t be able to figure out what has to be done. Software is obvious like telephone books and recipes are obvious. They are not innovative in that they are just a sequence of data and instructions with myriad combinations. Software is subject to copyright. That’s the right way to protect the developer’s ideas.

There’s a reason we have copyright and patent law. They are two distinct and protectable realms. People who spend years creating a work should have a monopoly on its use for some years. That’s reasonable and promotes such valuable contributions to humankind. People who find a way to make a better mouse-trap should also be rewarded. The world needs better mouse-traps and few have the ability or interest to create them. Software is not a mouse-trap, however. The computer is the mouse-trap. Software is information like speech or writing. It can take seconds to create or years depending on the size of it but it is not protectable by patents.

New Zealand finally figured this out and banned software patents. What about the rest of us?

“The patents system doesn’t work for software because it is almost impossible for genuine technology companies to create new software without breaching some of the hundreds of thousands of software patents that exist, often for very obvious work”

see New Zealand bans software patents.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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13 Responses to Banning Software Patents

  1. bw says:

    Of course a book about mathematics is copyrightable

    I do not see where I said that it was not. Doughman had posted that software was like math and could not be patented. I only posted if that were the case then it could not be copyrighted either. Nothing said about a text regarding math as a subject, just math as equations which is what doughman clearly meant.

    You cannot copyright an equation like:

    HΨ = EΨ

    Since you cannot copyright the meaning of a statement and since in math there is only a very limited variety of ways to express that meaning, you cannot copyright the equation. On the other hand, if you use math expressions to describe a process that you assert to be unique and innovative, then you can include those expression in your patent as descriptive information and still end up with a valid patent. You can use a computer software program to implement your method as well without invalidating the patent.

    The computer is the mouse-trap

    That is a wrong view of the situation, I believe. The computer, when it is a part of a method or process improvement is just a component of the process. Perhaps some other device, such as a fixed purpose digital logic network, could be substituted for the computer as was once often the case with electronic devices, leading to expanded claims in such patents. I agree that software patents should not be allowed where the computer is merely an alternative means of implementation of something that may already exist in some alternate implementation, for example using a computer instead of analog and digital circuits to control a machine tool with numeric data. But if something totally new is envisioned that provides extended benefits vs an existing alternative, it should be patentable whether implemented with computer software or gear trains or sets of leather belts and pulleys.

  2. bw wrote, ” Software isn’t “basically math” at all. Given your aversion for education, I can only wonder where you got such an idea. You perhaps do not realize that you cannot copyright a mathematics expression either due to the limits of expression inherent in the process. If your premise were true, then software program copyrights, including the basis for the GPL, would be null and void as well.”

    Begging the question again, eh? Of course a book about mathematics is copyrightable. So is a computer progreamme. Even a dictionary is copyrightable and there is little or no expression in that. It’s about a collection of stuff.

    In US Copyright law, “A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
    A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.”

    GoTo 27 is not copyrightable but the whole programme in which it is found is copyrightable. Of course there is no creative talent expressed in such statements. They are syntax diagrams filled in with a few details, but the whole thing is a protectable work simply because it is a collection of stuff and published. Similarly, that statement is not patentable because it is obvious to anyone who can RTFM. A collection of things not patentable is of course not patentable just a million times obvious.

  3. bw says:

    since software is basically math

    It is truly amazing that you can continue to pull so many things out of your butt, doughman! Software isn’t “basically math” at all. Given your aversion for education, I can only wonder where you got such an idea. You perhaps do not realize that you cannot copyright a mathematics expression either due to the limits of expression inherent in the process. If your premise were true, then software program copyrights, including the basis for the GPL, would be null and void as well.

    You seem to miss out on the notion that citing a bunch of instances where patents were denied is hardly an effective argument that patents should be done away with as specious and arbitrary Whatever were you thinking?

    I cannot even begin to understand what sort of logic of yours can conclude that gene patenting is somehow akin to the alphabet and speech either. I think you just though the words looked good on paper, not having much book learning yourself.

  4. dougman says:

    Trolls says that one cannot patent the alphabet; today his troll brethren are devising ways to patent the entire three billion-letter alphabet of the human DNA, and may just get away with it.

    Gene patenting is like someone owning the alphabet and charging you each time you speak.

    Microsoft has been denied for attempting to patent custom icons.

    Apple denied for attempting to patent gestures, such as pinch-to-zoom and slide-to-lock.

    Software patents are a just plain silly and should be completely done away with.

    Broken Windows, not knowing what he is talking about, states that math cannot be patented. However, using his deductive illogic, since software is basically math, perhaps we should invalidates all software patents and let the market decide who is who. Surely is is not M$ these days.

    Diamond v. Chakrabarty 1980, allowed the patenting of life itself, “to include anything under the sun that is made by man”.

    State Street Bank and Trust Company v. Signature Financial Group 1989, in appeal stated that “a mathematical formula can be patented, if it is a moneymaker.”

    Patents, while worthy to secure your product, was never intended to be used as they are being used today, this is why the majority of them should be dissolved and denied.

  5. oiaohm says:

    Yes the bill gates idea that patents would stop FOSS effectively has turned out not to be the case. Hardware makers providing FOSS just sign cross license deals. So most of the patent limitations are a no-op.

    The worst effects have been on Microsoft and closed source makers for the techs they have not been able to license at all.

    FOSS since its not sold does not have the means to lever against it using we will not sell/promote your product unless you license us into your patents.

    Its all about leverage Microsoft can lever hardware making providing foss products into paying. Same hardware makers can Lever Microsoft into handing over there patents if they want there product shipped.

    How does Microsoft lever a foss project into paying patents. Answer it fails. Lots of foss projects don’t ship built binaries. No built binaries no grounds to patent apply. Ok then FOSS can build those binaries in a patent free country.

    FOSS can loop hole the patent system lots of different ways. Making patent enforcement highly expensive project.

    So bill gates idea about patents only can work against FOSS is patent law is uniform world wide. The fact its not FOSS slips around the law.

    FOSS cloner doing something patented just make build country somewhere patent free. NZ just become another country to add to the ideal build server location.

    Yep $20000-$50000 per patent and the result bw is you have spent all that money and have no effective enforcement against FOSS that effects FOSS development. At worst the patent feature ends up in a independent library hosted in patent free countries. s3tc is a example of this. FOSS cannot get a patent license for it. Cannot work around it. So end user can down load the library that does s3tc from a country that is not protected by patent law.

    Level of headache for FOSS is almost zero. Headache moves back to hardware makers. It makes no difference to hardware makers because if they made there own internal OS or used FOSS they would have to resolve the patent issues anyhow.

    The sad reality is people like bw don’t get it yet. Patents don’t work against FOSS.

    Even Microsoft has worked out that patents are not applicable against FOSS projects as they just move to a country that is patent free. So bw since FOSS cloners can just move to patent free countries how is patents a problem for them. Come on its just you being a idiot again not looking at how the world works and believing spin.

    Of course s3tc patent still annoys FOSS developers. Since it means they cannot use all there build servers.

  6. oiaohm says:

    bw so why does Windows not have same page merging. Ok that is patents by VMware and is licensed to be used by Open Source only.

    Ok why does not Windows have RCU locking. Right IBM patents that and its for FOSS only.

    This is the problem bw deep pockets are not enough to buy a patent license. IBM and others patents particular patents requiring source code release. Result MS cannot use those features and it does not matter how much cash MS has.

    The idea that patents are only a FOSS cloners head ache is wrong.

    Legal team taking out extra claims to prevent others get past IBM invented a term for that barb-wiring.

    “Imagine the absurdity of an uneducated fellow who does not realize that the alphabet, numbers, and mathematical formulas cannot be patented.”

    There is a patent that stood for 4 years where someone did patent the Alphabet. Hid it under enough legalise.

    http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html

    The most recent major laugh of something in face being patents. Patented the Wheel.

    There needs to be fines for creating a patent using the legalise to hide what they are.

    The biggest problem is there is no requirement for a patent to be court/peer tested before it can be applied to other parties.

    –Well, that should set the world on fire! The kiwis are the bleeding edge of technology, of course, and have now shown the way.–

    Wise move from NZ. India and other countries are getting popular for companies to set up there development teams there. Due to lax patent laws.

    Yes lax patent laws means you don’t have to pay patent licenses on prototypes.

    Even with cross licensing you still have to pay for your prototypes in most cases.

    The software patents are a double sided sword. Stifling Microsoft Apple and Linux development.

  7. bw says:

    That said, I don’t disagree with the notion that anything that is patented must meet the “non-obvious” criterion. There is clearly a lot of things patented that have to do with software that fail the non-obvious test if only they were reviewed by someone who was actually skilled in the technology pertaining to the patent.

    What happens, and I have seen it hundreds of times in my own company operations, is that developers are tasked with producing patent disclosures periodically, typically 4 per year where I worked. Any one working on a new twist to the product then dutifully produced a disclosure statement that was sent on to a review committee that picked winners from the batch of entries.

    Once one of these was selected, the developer would be rewarded with a couple of thousand bucks in bonus pay and it would be announced in a team meeting where the other developers in the group would shake their heads and wonder how that ever got picked. “Duh!?” was the normal response.

    The corporate review committee was staffed with high level developers who were somewhat familiar with the technology areas involved although usually not on a day to day basis. Naturally, once a patent attorney whipped the thing into presentable shape (for $10K to $50K in fees) it breezed through the patent examiner process (after about 3 years of delay) and a patent for some sort of obvious solution was added to the portfolio. The lawyer had determined that there was more than one way to skin the cat, too, so the issued patent will make claims for alternate embodiments to the now thoroughly confused invention so that it would be more difficult for any interloper to get around some obvious and necessary step needed to follow down the same path.

    That does stifle innovations to some extent since the only sort of entity that can safely follow down the same road is one that has the clout to fend off any patent infringement claim or who has some sort of cross license already in place. Certainly the FLOSS cloner has a headache.

  8. bw says:

    Imagine the absurdity of patenting the alphabet, numbers, and mathematical formulas

    Imagine the absurdity of an uneducated fellow who does not realize that the alphabet, numbers, and mathematical formulas cannot be patented.

  9. bw says:

    Software patents are not about protecting inventors but about attacking the creative folks who bring us new technology

    You definition of “creative folks” seems to be those who copycat up and coming applications and give the results away for free. Quite often that means stealing the creative ideas that someone had that sparked the application in the first place.

    I think that the fans of open source are mostly cheapskates who do not care to give the originators their right to the fruits of their creations by paying for them.

  10. dougman says:

    Imagine the absurdity of patenting the alphabet, numbers, and mathematical formulas.

    NO books could be written!!

  11. bw wrote some nonsense, attempting sarcasm, perhaps.

    Software patents are not about innovation nor the bleeding edge of technology. They are about stifling competition by organizations unable to afford all the lawyers needed to fight thousands of potential violations per device. Don’t you understand that if every OEM paid every licence fee for every possibly relevant software patent no one could produce a single smart thingy or PC? The cost of software would dwarf the cost of hardware several times over. How many books would be written if the letters A through Z were patented by 26 mega-corporations? The whole purpose of patents was to promote invention by protecting inventors. Software patents are not about protecting inventors but about attacking the creative folks who bring us new technology.

  12. bw says:

    New Zealand finally figured this out and banned software patents. What about the rest of us?

    Well, that should set the world on fire! The kiwis are the bleeding edge of technology, of course, and have now shown the way.

  13. dougman says:

    The whole mess with software patents is akin to Campbells suing Kraft or Heinz, over a recipe that everyone knows about.

    I think New Zealand is a good start, lets get the other 180+ countries on board and create more innovation!

    Patents should be only good for one year, as it locks out the rest of the world and delays product innovation.

    A good example of this is 3D printing, the only reason you see them popular now all of a sudden is the 20-year patents are expiring. Yes, you read that right…we ‘could’ have had 3D printing @) years ago.

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