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07.11.09

It’s Official: Bilski Kills Software Patent

Posted in GNU/Linux, IBM, Law, Patents at 7:56 am by Dr. Roy Schestowitz

Keep clean

Summary: Judge Gilford’s ruling puts software patent in the garbage can

IN Re Bilski is destined to travel all the way to the top where a newer verdict may be more explicit than implicit regarding software patents. The good news is that, in the mean time, the previous Bilski decision gets used to invalidate a software patent. From Slashdot’s summary.

“US District Court Judge Andrew Gilford (Central District of California) granted a summary judgment motion in DealerTrack v. Huber et al., finding DealerTrack’s patent (US 7,181,427) — for an automated credit application processing system — invalid due to the recent In re Bilski court decision that requires a patent to either involve ‘transformation’ or ‘a specific machine.’ According to Judge Gilford’s ruling, DealerTrack ‘appears to concede that the claims of the ’427 Patent do not meet the “transformation” prong of the Bilski test.’ He then applied the ‘specific machine’ test and noted that, post-Bilski the Board of Patent Appeals and Interferences has ruled several times that ‘claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.’ Judge Gilford analyzes the claims of the ’427 patent, notes that they state that the ‘machine’ involved could be a ‘dumb terminal’ and a ‘personal computer,’ and then concludes: ‘None of the claims of the ’427 Patent require the use of a “particular machine,” and the patent is thus invalid under Bilski.’ DealerTrack apparently plans to appeal the ruling. Interesting times ahead.”

The FFII /SSP points out that “the Bilski test was invented by IBM,” which is interesting because IBM wants software patents to stay.

By reading the Amicus Brief of IBM to the CAFC, it is pretty clear that the machine tranformation test which allows software patents and ban business method patents was invented by IBM lawyers.

To IBM, software patents may be a mechanism for ensuring that people buy GNU/Linux from IBM and not from smaller companies which cannot indemnify. IBM relies on gullibility and blind trust to a certain extent.

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125 Comments

  1. latex said,

    July 11, 2009 at 8:07 am

    Gravatar

    ” Judge Gilford analyzes the claims of the ‘427 patent, notes that they state that the ‘machine’ involved could be a ‘dumb terminal’ and a ‘personal computer,’ and then concludes: ‘None of the claims of the ‘427 Patent require the use of a “particular machine,” and the patent is thus invalid under Bilski.’ ”

    That is true for Bilski and for an “Automated Credit system” but that does not apply to C code or software in general, that software (all software) have to run on a “Particular machine”.

    Ie, a machine that is capable of running the patented software, so once again, you have made the wrong assumptions, and its certainly not an iron clad assurance that software patents are invalid.

    As clearly software patents are granted all the time in the US, even with Bilski, how do you explain that Roy ??

    Roy Schestowitz Reply:

    “latex” is another nymshift of “Darryl”, a Microsoft troll who was banned from Linux sites. Be warned.

    G. Michaels Reply:

    “twitter” is another nymshift of Erris/Mactrope/gnutoo/willeyhill/westbake/inTheLoo/Odder/ibane/deadzero/freenix/mycopywrong/GNUChop/right handed, an extremist FOSS troll that was laughed off Slashdot. Be warned :)

    twitter Reply:

    To the great dissatisfaction of your employers, G. I’m still a respected submitter at Slashdot. You fail at smear.

    G. Michaels Reply:

    I’m not sure who my employers are or why you would care about them Will, but I don’t think you’re respected at Slashdot other than in your head, and in any case your bossman himself has said nymshifters don’t deserve attention, so I don’t see how you could consider a fair warning about your ilk (like the ones Roy gives) a smear. You’re just too stingy, that’s all :)

    twitter Reply:

    the latex troll asks,

    As clearly software patents are granted all the time in the US, even with Bilski, how do you explain that Roy ??

    That is not clear at all, but what’s left of patent grats is wishful thinking by people with more money than sense or good will. Roy has quoted media sources about Patent Trolls like as Myvold and Gates. These people think they can blackmail the rest of the world with a vague idea patents and a corrupt legal system. The rest of us have decided that should not happen. At the very least, this decision shows that Biski has done away with business method patents and all but a very few software patents. The last thing I read was that companies with any sense quit applying.

    I have yet to meet a software patent that passes the Biski test and would love for you to give me an example.

  2. Dale B. Halling said,

    July 11, 2009 at 9:30 am

    Gravatar

    Bilski has not killed software patents, it only requires a formalistic claim to the hardware necessary to run the softwahttp://hallingblog.com/2009/06/08/bilski-software-patents-and-business-method-patents/re. See

    twitter Reply:

    Heh. Judges with common sense seem to see through “formalistic” claims.

  3. les said,

    July 11, 2009 at 12:55 pm

    Gravatar

    A Brief citation from this document
    http://www.uspto.gov/web/offices/com/sol/2007-1130uspto_opposition_to_certiorari.pdf

    No. 08-964
    In the Supreme Court of the United States
    BERNARD L. BILSKI AND RAND A. WARSAW,
    PETITIONERS
    v.
    JOHN J. DOLL, ACTING UNDER SECRETARY OF
    COMMERCE FOR INTELLECTUAL PROPERTY AND
    ACTING DIRECTOR OF THE UNITED STATES PATENT
    AND TRADEMARK OFFICE
    ON PETITION FOR A WRIT OF CERTIORARI
    TO THE UNITED STATES COURT OF APPEALS
    FOR THE FEDERAL CIRCUIT
    BRIEF FOR THE RESPONDENT IN OPPOSITION

    From page 14 of the PTO’s petition asking the supreme’s not to look too closely at the absurd decision in Bilski:

    to accommodate emerging technologies. Pet. App. 17a.
    In any event, the court of appeals emphasized that its
    decision in this case does not address the application of
    the machine-or-transformation test to computer software,
    data-manipulation techniques, or other such technologies
    not involved in petitioners’ risk-hedging claim.
    See, e.g., Pet. App. 25a n.23 (“[T]he process claim at issue
    in this appeal is not, in any event, a software claim.
    Thus, the facts here would be largely unhelpful in illuminating
    the distinctions between those software claims
    that are patent-eligible and those that are not.”); id. at
    28a

    So you see, the judge got it wrong and this decision will be overturned.

    NymShift Reply:

    It does seem to be a bit “wishfull thinking” on the part of the anti-software-patent lobby group.

    And certainly quite expected when you’re largely limited to employing others innovation and patents. It’s certainly not the view of anyone who owns patents or groups who have invested large sums of money in product development, an investment that can only be recouped by having exclusive use of your research and development your IP and your patents arising from it.

    Like it or not do you think drug companies would go to the huge expense of developing, testing and having approved drugs at great expense if there is not method for them to protect their investment.

    Well the same applies to software that people are willing to pay for, it costs money to develop the products and services and to maintain the support and product improvements that are required to keep people paying for the next version.

    FOSS has its place, but craving the ability to steal other peoples inventions for your own use looks like what it is, a form of theft.

    If patents ensure that I get invention and innovation that im willing to pay for then I do support patents in software and anything else.

    The alternatve is to develop that functionality yourself in clean room fachion or use a different method or solution.

    In other words “INNOVATE DONT IMMITATE”. It’s as simple as that.

    Not that FOSS has not done alot of good, but most of what it does is a direct knockoff or clone of applications and systems allready commonily available.

    Fighting agaist patents tells people that FOSS is more interested in being a follower as opposed to a leader in technology development. Taking the route of least resistance.

    Roy Schestowitz Reply:

    “NymShift” is another nymshift of “Darryl”, a Microsoft troll who was banned from Linux sites. Be warned.

    les Reply:

    Is anyone who disagrees with you defined as a “troll”? If not, what is the definition?

    Yuhong Bao Reply:

    In fact, look at the nym itself. Funny, huh?

    Roy Schestowitz Reply:

    Yes, trolls don’t take themselves seriously. That’s why they troll with no attempt to seem too credible.

    Roy Schestowitz Reply:

    You don’t know “Darryl”.

    NymShift Reply:

    Neither do you Roy, and yes les according to Roy anyone that does not bow to the cult of roy is considered a troll.

    Roy likes to be surrounded by “yes” men (or kids).

    He calls me a “troll” because I look up he’s “facts” and question him on the false information he presents.

    Roy does not like that, sol he’s only recourse it to call me a troll.

    Twitter, will ignore anyone on the IRC channel that says anything he/she does not like or agree with.
    Perfect duo Roy and Twit (er).

    Roy, If im a “troll” what does that make you ?

    Answer if you like or not, I dont really care I find your opinions purile, pointless but amusing. (If not a little sad, you dedicate your life to this ’cause’).

    But Roy, you said it perfectly.

    You dont know “Darryl”.

    just like you dont know how to work for a living, have you got a job yet ? (I guess you’re not even bothering to look).

    Too busy leading your cult of roy and playing some kind of bizzare type of moral police.

    But you have so little industry cred that anything you say means less than nothing.

    Roy Schestowitz Reply:

    While you’re at it, please stop trolling my personal blog (schestowitz.com).

  4. contextfree said,

    July 11, 2009 at 4:15 pm

    Gravatar

    So I guess we no longer need to worry about patent threats to Mono now that software patents are dead anyway? =)

    Roy Schestowitz Reply:

    As we endlessly stress, Mono’s problem is to do with control more than with patents.

    Jose_X Reply:

    If the general purpose computing platform exception gets reaffirmed by the SCOTUS, then I think this opens a lot of possibilities for mono.

    It means people can freely fork mono, for example, and not feel threatened by Microsoft. It means the few bits of mono that aren’t reimplementing the wheel can be leveraged into other systems (java or whatever).

    I would not want to help mono until it changed away from MS focus. Perhaps the API could be standardized among java, mono, perl, etc.

    I would definitely breathe a sigh of relief.

    Is it so difficult to wait several more months? Giving Canonical the benefit of the doubt, perhaps they are very confident and figure before mono gets out of hand, the SCOTUS decision will be upon us and mono can be pulled back if the decision is not favorable.

    Jose_X Reply:

    I should have added…

    If Canonical is going to jump the gun, then the gun should also be jumped for forking mono.

    Why fork? Because we should focus on Linux/FOSS not on Windows. Mono, as it is, is optimized for Windows and leverages investments Monopolysoft has. I want Monopolysoft chasing us (or working from an even field.. eg, ODF) and not vice versa, especially since they have monopoly, closed source, etc advantages and use these large advantages in some large markets to stifle competition and infuse important software as closed source.

    twitter Reply:

    We’ll see. If mono is really a community driven effort, it will survive without M$ support. You don’t think M$ will fund Novell and the paid mono developers to reimplement ASP.NET when it is harmless to free software do you?

    Before you thank M$ for what may become an unintentional gift, remember how much money they have wasted running both SCO and Novell into the ground. The $50 million they started the SCO fiasco with was just the beginning. You also have to count the cost of the lawsuits and the destruction of both companies. We’re talking billions of dollars of intentional waste. Do you think M$ has spent a small fraction of $50 million on mono development? Wouldn’t Novell have been better off jumping on the free software movement for real than wasting precious programmer time on something M$ will always break?

  5. Jose_X said,

    July 11, 2009 at 10:51 pm

    Gravatar

    From http://opendotdotdot.blogspot.com/2009/07/patents-dont-promote-innovation-study.html

    *****
    glyn moody, to add to your remark that wealthy nations have patents because this correlates with other things (stable and successful economic and political systems, etc):

    When you have an abundance of creations, patents can leech off this, at least in areas that don’t handcuff most people/inventors. For example, most people/inventors have no direct loss to a patent dispute involving heavy industrial processes. So patents are tolerated because the loses to the vast majority of people (and inventors) are of things they aren’t able to exercise anyway. Most people don’t have access to the resources to manufacture, distribute, etc, the subject of these patents. At some point, a patent is a loss to society. Today, a larger number of patents that were possibly a net gain decades ago might no longer be a gain for society if they were given today. The reason for this is because today the Internet has made wide-scale collaboration possible and sophisticated simulations and models have also been created with software (bringing expensive experimentation laboratories into reach of more people/inventors).

    As an extreme case of patents that fulfill hardly any of the context of past patents that were net gains, we have software. Many many people that will never start/own/run a large factory or capital intensive business will participate in the creation, distribution, etc of software, and to very significant extents. I can’t take your factory and zap it into my living room, modify it, and redistribute it to others wanting factories; however, I can most definitely do that with software — and quite effectively. The Internet and computers have really made software experimentation (design) accessible to virtually everyone (at least in wealthy nations) and for just about any subfield of software. Software most definitely should not be patentable, at least in the vast majority of cases where the above items hold, if we intend to promote the progress of science/arts. Even before the Internet was widely used, Bill Gates recognized this much, so one might expect that software patents would do even more damage today (if enforced aggressively) than they would have a decade or more back.

    Now to give one example of how correlation is not causation.

    The governments of wealthy nations make many billions (or trillions) in taxes annually. The governments of poor nations do not make many billions (or trillions) in taxes annually.

    So does this mean that if we try to tax poor nations significantly more, so that the taxes approach these values of wealthier nations, then these poor nations will become wealthy?

    No. That’s a ridiculous notion.

    Similarly, patents are a tax, and their existence is owned to a healthy economy (not vice-versa). There are very bad taxes that can destroy an economy (eg, a 95% tax used to pay people to dig holes that have little benefit to the rest of society).

    “Software” patents are an example of a very bad tax.

    twitter Reply:

    Mr. Moody seems to be ignorant of previous US monopolies that were imposed by more legitimate patents in the 20th century. Glass, glass bottling and steel were controlled by monopolies which added considerable costs to everyone else. Glass bottling was a particularly abusive use of patent and lead to higher costs on every fluid sold in bottles, medicine, milk and so on. The patents used were for specific machine parts and processes, real inventions. The high costs and productivity of these machines does not mean that people did not pay multiples of what a free market would have charged.

    The created rights of patents are inherently odious things that should be granted with great caution. Patents are monopoly grants that are supposed to be balanced by public disclosure of useful and non obvious inventions. Today’s business method and software patents don’t begin to pay off the public for their temporary loss of use of what’s been covered. A reasonable court, will combine anti-trust laws with patent reform to protect citizens and the world from the gruesome burdens of monopoly medicine and non free software. An unreasonable court will ignore history and leave the public open to predation.

    les Reply:

    Assuming your story of glass bottles is correct, you are ignoring the investment involved in figuring out how to make the glass bottles.

    In a world without patents, someone spends 50 million to figure out how to make glass bottles that can be filled and transported without breaking (and by the way keeps Coke a Cola tasting great), starts making and selling them and then you come along, reverse engineer the bottle and start cranking out cheep copies without spending more than the nickel for the coke to solve all the problems. The inventor has to pay of the 50 million loan and you don’t accordingly you sell your bottles for less and the inventor goes out of business.

    How is that fair?

    Roy Schestowitz Reply:

    Peer production realises that all inventions are mere aggregations of others — prior inventions. Should teachers also patent what they preach at school (or “give away for free to students”)?

    les Reply:

    If teacher give things away for free, then how do they eat, how do they pay for their home and their clothes? No teacher I ever had taught for free. But, since teachers are usually teaching things already known to the world, they can’t patent what they are teaching. Only inventors are entitled to patents.

    Roy Schestowitz Reply:

    Teachers are paid for their time. So-called “patent holders” sometimes use a mixture of old ideas to tax other people and make it a welfare programme.

    les Reply:

    One can’t get a patent on an old idea. One can get a patent on an improvement. But then all that is patented is the improvement. You are free to take advantage of the old idea tax free.

    Roy Schestowitz Reply:

    Define “old”.

    les Reply:

    You used “old” first. I use it the way you used it.

    Roy Schestowitz Reply:

    It is also a debatable term in copyrights, which are endlessly being extended.

  6. Jose_X said,

    July 11, 2009 at 10:53 pm

    Gravatar

    >> ’He then applied the ’specific machine’ test and noted that, post-Bilski the Board of Patent Appeals and Interferences has ruled several times that ‘claims reciting the use of general purpose processors or computers do not satisfy the [Bilski] test.’

    Getting the general purpose computer exception to go in our favor is wonderful news. This is a good call post Bilski.

  7. Jose_X said,

    July 11, 2009 at 11:40 pm

    Gravatar

    From http://opendotdotdot.blogspot.com/2009/07/patents-dont-promote-innovation-study.html

    *****
    [Dale Halling] >> http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-of-adoptiondistribution-of-technology/

    I skimmed that essay. It appears that the author wants to recognize and reward that value of inventions (intellectual realm).

    I think that is great, but patents are a horrible way of doing that. They stagnate the rest of the world. Lack of scarcity helps explain why this is so.

    [Labor theory of property @ http://en.wikipedia.org/wiki/Labor_theory_of_property ] >> When a person works, that labor enters into the object. Thus, the object becomes the property of that person.

    Problem is that many work towards inventions, yet patent law gives it all to a single entity. For example, patent law takes away from the labor I did to create item X that ended up inspiring a conversation between you and someone, from which you got inspiration towards your invention. I contributed because without my item X, you would not have made that invention as/when you did.

    Further, according to this logic, why should others be prevented in the future from adding their own labor to further improve the property?

    Giving a person exclusive use of something until they dispose of it is not the most efficient use of that property, but it might be a very practical compromise for (eg) houses, chairs, etc, in many cases. Note further that we can all own a house or chair that are very similar and hence live out our life in society without missing too much. A patent given to you, on the other hand, prevents me from enjoying an invention that would be very similar to yours. [Copyright monopolies are more lax this way, btw.]

    Anyway you slice it or dice it scarcity is an important element, but even if we look towards Locke, patent law has problems.

    Jose_X Reply:

    I messed up. In the bottom half of this, the comparison turns out to be between patented general ideas vs the unpatented or the narrowly patented. [Thought vs tangible property should not have been the division, in other words.] I got fooled because I was thinking software patents vs ordinary item (patents). Software patents have been allowed to be over broad concepts rather than specific implementations.

    I think some have argued that as the software industry matures, the patents will become more refined. Nevertheless, patenting is a bad way to reward because of its retarding effect on so many. Maybe it might be justified as a last resort after a prolonged failure to bring about innovation (however, such a system would be abused, no doubt, since someone has to judge to grant the patent).

  8. les said,

    July 12, 2009 at 7:29 am

    Gravatar

    Both of these statements are incorrect:

    “Further, according to this logic, why should others be prevented in the future from adding their own labor to further improve the property?

    Giving a person exclusive use of something until they dispose of it is not the most efficient use of that property, but it might be a very practical compromise for (eg) houses, chairs, etc, in many cases. Note further that we can all own a house or chair that are very similar and hence live out our life in society without missing too much. A patent given to you, on the other hand, prevents me from enjoying an invention that would be very similar to yours.”

    Others can add their own labor to further improve the property. Whats more, they can get a patent on the improvement. The can then negotiate a cross license with the original inventor so they both can enjoy the benefits of the work of each other.

    Patents don’t give anyone the exclusive right “until they dispose of it”. Under the present rules, patents expire 20 years after their filing date

    Its not about the most efficient use of property, its about rewarding innovation. We can all own similar houses and chairs if we buy them from the same manufactures. Likewise, we can all own instances of inventions if we buy them from the person that invented them or their assignees. Additionally, to the extent that we can buy similar chairs from different manufactures, it is because chairs were invented a long time ago and are no longer patented (the patents expired)

    If someone invests a lot of money or effort in designing a better chair why shouldn”t he be able to patent it?

    Why should you be able to reverse engineer it and knock off cheap copies, thereby stealing her investment in the new design? People can still sit in old style chairs, or they can buy the better chair from the inventor, Moreover you can make your cheap copies when the patent expires and future generations get the benefit of the disclosure of how to make the better chair provided in the patent application.

    Imric Reply:

    And – if someone works hard to work out a mathematical formula, are they able to patent it? NO.

    Software is essentially math. It has no physical component. Implementations are ALREADY PROTECTED by copyright. Bilski is a compromise in that software tied to specialized hardware (a physical component – the software is necessary to the hardware’s function, the specific hardware is necessary for the software to function) is allowed to be patented, as well as copyrighted. I personally think this is too large a loophole.

    Math cannot be patented. Software is math, and this is what you advocate. Software implementations are already protected by copyright, anyway, so practitioners already have protection for their work; the ‘incentive to innovate’ argument is a red herring.

    Right now, software patents are being used not as incentive to create, but as weapons against creators. Software patents do not advance the useful arts – they use a misunderstanding of the nature of software to retard progress. Software is not a ‘thing’. It’s math.

    Roy Schestowitz Reply:

    It’s also ‘protected’ by copyrights.

  9. Yuhong Bao said,

    July 12, 2009 at 2:32 pm

    Gravatar

    “To IBM, software patents may be a mechanism for ensuring that people buy GNU/Linux from IBM and not from smaller companies which cannot indemnify.”
    Well, I don’t think IBM have it’s own Linux distro at all, so no.

    Roy Schestowitz Reply:

    It sells Linux solutions like mainframes.

    Yuhong Bao Reply:

    True, but do they really sell patent protection like Microsoft/Novell does? No.

    Roy Schestowitz Reply:

    IBM supported the Novell/Microsoft deal.

    Yuhong Bao Reply:

    But I don’t think they bring in their own patents for “protection” by the MS/Novell deal.

    Roy Schestowitz Reply:

    No, they don’t. Their public relations are better than Microsoft’s (or Novell’s).

  10. Dale B. Halling said,

    July 13, 2009 at 11:17 am

    Gravatar

    There seems to be a desire to ignore the empricial evidence with respect to patents. Those countires with the strongest patent laws not only have the most innovation but also the greatest diffusion of technology. Those countries with weak or non-existent patent laws have almost no innovation and the least diffusion of technology. While this may just be a coincidence, its probably just a coincidence that countries with socialist/communist governments always turn out to be repressive and fail economically.

    Patent Laws are consistent with the Locke’s theory of property. Lack of patent laws are consistent with petty dictatorships. See http://hallingblog.com/2009/06/22/scarcity-–-does-it-prove-intellectual-property-is-unjustified/

    Roy Schestowitz Reply:

    Patents are government-granted monopolies (for a limited time). Thus it is wealthy nations that exploit them — to keep themselves ahead and create barriers to competition. So your suggestion that poor countries are poor due to lack of patents is like like suggesting that “watching The Nutty Professor makes people obese” rather than “obese people watch The Nutty Professor”. You are reversing cause and effect.

    Jose_X Reply:

    Believe it or not there are many things that tend to correlate. Pathogens usually gather where you have a greater abundance of hosts, for example.

    Taxes are usually greatest when you have the greatest existing wealth.

    Monopoly grants are something bestowed upon the people as a form of subsidy when the economy can handle it.

    Communist governments grant monopoly rights all the time, btw, or at least really curtail the ability of people to collaborate and pursue their own goals.

    Anyway, I am not against all patents necessarily. There would be times where the costs to produce something would prohibit many inventions without some level of further rights/incentives.

    In any case, to remain constitutional, patent grants should entail a high level of convincing that the invention would not otherwise have been achieved and that a monopoly grant for X number of years would thus promote the progress of the sciences and useful arts.

  11. Dale B. Halling said,

    July 13, 2009 at 11:34 am

    Gravatar

    Roy,

    You are again confused on the facts. Patents are not a monopoly – unless you define all property rights as a monopoly.

    The Myth that Patents are a Monopoly
    A patent gives the holder the right to exclude others from making, using or selling the invention. 35 USC 154. It does not give the holder the right to make, use or sell their invention. A monopoly is an exclusive right to a market, such as an electric utility company. An electric utility company has the exclusive right to sell electricity in a certain territory. Since a patent does not even given the holder the right to sell their invention, let alone an exclusive right to a market, it is clearly not a monopoly.

    When a person describes a patent as a monopoly to be consistent they should also state that they have a monopoly over their car or over their house. In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house. A patent does not give these rights to an inventor over his invention. All invention are built upon existing elements (conservation of matter) and if the elements that the invention uses are patented, then the inventor will not have the right to sell their invention without a license.

    Some economists argue that a patent is designed to give the holder monopoly power. Those economists who are consistent also state that all property rights give some monopoly power. The property rights are monopolies thesis shows how confused economic thought is on this subject. The only logically consistent definition of a monopoly is an exclusive right to a market.

    People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.

    Roy Schestowitz Reply:

    Patents are a monopoly on an idea. As for economists, Nobel prize winner Professor Joseph Stiglitz says: “IP is often compared to physical property rights but knowledge is fundamentally different.” Software patents are algorithms, not machines.

    Jose_X Reply:

    Dale, we could add that bit of clarification, but the point is that a single individual is given a monopoly over the differential construction. And since patents can be extremely broad, we are talking about a single patent claim giving the owner a monopoly over many many inventions.

    From http://www.answers.com/monopoly
    >> Law. A right granted by a government giving exclusive control over a specified commercial activity to a single party.

    Dima wrote something up that was interesting. Search for “Dima” here http://www.good.is/post/the-patent-troll/

    >> I was at a small company that Mr. Spargenburg sued over a software patent. The patent was for such a common and obvious implementation that it would have been outrageous for us to have done a patent search before implementing. Mr. Spangenberg sued us and dozens of other small firms that didn’t have the means to defend ourselves. Neither he nor the original patent owner actually implemented it nor did they publish a paper or create any social value. They simply got the patent office to give them 20 years to wait for someone that would.

  12. Dale B. Halling said,

    July 13, 2009 at 1:58 pm

    Gravatar

    Roy, Stiglitz does not have a noble prize in economics and his opinions on IP are confused at best. He starts his article against patents, but then states that no one wants to completely eliminate the patent system.

    He also suggests that patents hurt the dissemination of knowledge. THis is not true in fact or by design. The US patent system has been designed so that information about inventions is widely disseminated, so that people can build on the knowledge provided in the patents.

    Any theory that purports that patents hurt innovation and the dissemination of knowledge has to explain why the most innovative countries with the greatest technological dissemination have the strongest patent laws.

    Roy Bixler Reply:

    According to Wikipedia, Stiglitz got a Nobel Memorial Prize in Economic Sciences in 2001.

    As for your argument regarding strength of patent laws and rates of innovation, it can also be argued that, before there were patents on software, no one had any particular problem writing innovative software. With software patents, it is currently a problem that many obvious things are being patented and this is a barrier to innovation. Software patents are an example of trying to solve a problem which didn’t exist.

    Roy Schestowitz Reply:

    A problem did exist; lawyers did not make enough income, so they leeched off more talented engineers using a fairytale about “innovation” and “protection”. The problem is not an engineering problem, it’s a crisis which the meta-industry is trying to resolve for income.

    Programmers do not want patents, they already have copyrights. Carefully-conducted polls agree on that.

    Les Reply:

    When is it that you think there were no patents on software?

    Roy Bixler Reply:

    It seems to me that, in the ’80′s, software developers essentially had a clear field and software patents weren’t a concern. By the ’90′s that changed, as evidenced by the Gates memo from 1991 which says, in part, that “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today.”

    Roy Schestowitz Reply:

    Luckily (for Gates), he later became one of these monopolisers who exploit the broken system he had whined about.

    Les Reply:

    hmmm, well… this looks like a “software patent” claiming a method for transferring data from way back in 1962 (issued in ’67).

    http://www.google.com/patents/about?id=LadrAAAAEBAJ&dq=2954166+method.

    So, it looks to me like, contrary to your assertions, that innovative software you mentioned has developed under the protective umbrella of software patents for about 40 years or so….

    Roy Schestowitz Reply:

    That’s your misinterpretation/revisionism of software patents.

    Jose_X Reply:

    [Les] >> hmmm, well… this looks like a “software patent” claiming a method for transferring data from way back in 1962 (issued in ‘67).
    >> So, it looks to me like, contrary to your assertions, that innovative software you mentioned has developed under the protective umbrella of software patents for about 40 years or so….

    Patents are a way for one group of society to get subsidies. If those applying for subsidies are few in number or ask for little money (ie, a patent for something useless or easy to go around or very narrow or where they don’t pursue patent infringements or abandon the patent), then it doesn’t matter how bad or loopholed is the subsidy law. It won’t bring down the economy or even appear to dent it much.

    So volume matters and how these patents are used matters.

    Roy Schestowitz Reply:

    Very few countries ever had any. The US is one of them.

    Les Reply:

    You accused me of misinterpreting that patent within 2 minutes of my post, did you even look at it?

    Do you think patent for a:

    METHOD FOR OPTIONALLY WRITING-IN AND READING-OUT VARIABLE LENGTH INFORMATION BLOCKS IN CIRCU- LATINO MEMORIES

    is not a software patent?

    If so, why?

    Roy Schestowitz Reply:

    http://en.wikipedia.org/wiki/Software_patents

    “Due to different treatment of federal patent rights in different parts of the country, in 1982 the U.S. Congress created a new court (the Federal Circuit) to hear patent cases.”

    Les Reply:

    nonsequitors now?

    Roy Bixler Reply:

    You’re missing the main points. Software patents weren’t widely asserted until around the beginning of the ’90′s and, before then, their practical effect on software developers was negligible. It simply wasn’t a concern and there was no shortage of innovative programs. Enforcement of software patents became more of an issue around the time of the Gates memo, where he concisely explains the harm that software patents cause. The harm explained by Gates is more of a problem today. Software patents weren’t needed to produce a robust market for software in the ’80′s and they aren’t needed now.

    les Reply:

    If Software patents were not widely asserted before the 80s, its because they weren’t widely infringed before the 80′s A) because there weren’t a lot of them and B) because there weren’t a lot of people writing cold (The first Apple not having been available until the late 70′s)

    Your complaint is the complaint of those in any new technology.
    At some point I’m sure that someone said…How can I build any new machine. Every combination of gears has been patented and my hands are tied.

    So, pay for a license or wait until the patent expires. If you are blocked by a patent you are not innovating, you are copying.

    Roy Bixler Reply:

    So, pay for a license or wait until the patent expires. If you are blocked by a patent you are not innovating, you are copying.

    No, if I am blocked by a patent, more than likely it is some greedy patent troll or monopolist that has patented something obvious (not truly an invention), but I cannot afford to fight the case in court. If it were open source software, I would probably be unable to pay a licence fee and, in any case, the patent holder’s object may indeed be to block me from using their method. Too many obvious things have been patented, yet you seem to be oblivious to it. You have also not addressed the argument that there was absolutely no scarcity of people coming out with innovative software before software patents were widely held and asserted, thus there was and is no need for them. Every time I hear the pro-patents crowd argue that software should be patentable, I think of the saying “if all you have is a hammer, then every problem looks like a nail.”

    Roy Schestowitz Reply:

    If you are blocked by a patent you are not innovating, you are copying.

    So, if someone is denied “one-click shopping” (Amazon patent), then that someone could not have thought of it independently?

    Les Reply:

    Re: your 6:32 post

    I addressed the the argument that there was absolutely no scarcity of people coming out with innovative software before software patents were widely held and asserted quite directly. I pointed out that the argument is incorrect because software was being patented since the early sixties, when computers were based on vacuum tubes. I assure you, any significant software was patented. If the patents weren’t being asserted, it is likely because they weren’t being infringed.

    It is very hard to get an obvious invention patented. So, your allegation is not believe able.

    If one click shopping was obvious at the time of the invention, then why wasn’t it done earlier?

    Roy Schestowitz Reply:

    It was done, just not patented.

    Les Reply:

    If it was done, then the patent is invalid, so stop worrying about it.

    Roy Schestowitz Reply:

    Patents are tools of intimidation and they cost money and labour.

    Jose_X Reply:

    >> If you are blocked by a patent you are not innovating, you are copying.

    First of all, software patents are general. There are many details infringing applications develop that copy nothing in the patent yet are blocked by the patent.

    Second, a patent can block another patent, eg, if your invention depends on something still covered by an earlier patent.

    Note that even something that is not obvious at first site can be deduced after some work (work time much less than 20 years).

    Note that software patents are allowed to be very general. Thus even a “brilliant” insight (which others likely would have reached anyway in much less than 20 years.. or maybe already reached or could reach but didn’t seek patent monopolies) can block all further refinements of it.

    Why should the first get 20 years when the second and third (and 1000th) might have arrived days or months or even a few short years later? What we will find is that a lot of people with the skill to take this invention far (especially if they collaborate significantly) get handcuffed.

    >> It is very hard to get an obvious invention patented. So, your allegation is not believe able.

    Ha. What is brilliant to a nonexpert (to someone that has spent little time thinking about a type of problem) might be child’s play to many experts. Thus the patent holder can block off all of those experts from collaboration on other inventions. How foolish is that!

    Oh, and even if you aren’t an expert, you can read on some marvelous insight and then get a bunch of further insights or improvements.

    People become experts in many areas, eg, once their clients ask for something and they start working on a solution.

    If you are just as much of a “genius” as I am, but you started work 5 years before me, it’s reasonable to expect (approx model) you would get to plant your flag to many things before me. Why, then give you 20 year monopolies when I would have gotten there in 5 years? And trust me, if there are 2 geniuses there are 200.

    To add insult to injury, many software patents are considered a waste of paper by many software developers and even by many laypeople who are explained what the patent is patenting.

    Roy Schestowitz Reply:

    Roy, Stiglitz does not have a noble prize in economics and his opinions on IP are confused at best.

    Says the guy who can’t spell “Nobel”.

    FWIW, there is also this:

    Economist Critic of Software Patents gets Nobel Prize
    http://press.ffii.org/Press_releases/Economist_Critic_of_Software_Patents_gets_Nobel_Prize

    Jose_X Reply:

    >> He starts his article against patents, but then states that no one wants to completely eliminate the patent system.

    Against patents as they exist today?

    Against patents applied to software?

    Makes sense to me.

    >> He also suggests that patents hurt the dissemination of knowledge. THis is not true in fact or by design. The US patent system has been designed so that information about inventions is widely disseminated, so that people can build on the knowledge provided in the patents.

    If you have a trade secret and you think you can get more milage by keeping the trade secret, you can do that. The patent system doesn’t require you to divulge trade secrets.

    Meanwhile, if you think your secret is worth much less than a 20 year monopoly, you then seek the patents.

    The patent has very vague information (at least when it comes to software patents being granted). Patents create disincentives towards those willing to develop the implementation details of anything that might qualify as an invention covered by that patent. There is a disincentive as well towards further refinements of the idea.

    Finally, many people don’t have the time, inclination, or ability to read patents and work on their business. Of course, with patents being so silly in many cases, little is gained. I can’t afford to read all crappy fiction written if I want to spend time writing fiction. And it’s not as if the quality patent fiction is pointed out by a New York Times best Seller’s list. Of course, this is a crude analogy since you can read fiction and then write a similar story.

    >> Any theory that purports that patents hurt innovation and the dissemination of knowledge has to explain why the most innovative countries with the greatest technological dissemination have the strongest patent laws.

    http://boycottnovell.com/2009/07/11/in-re-bilski-vs-software-patent/comment-page-1/#comment-69643

  13. André said,

    July 13, 2009 at 2:40 pm

    Gravatar

    Stiglitz is probably best know for the Stiglitz/Rothschild publication.

    Michael Rothschild, Joseph E. Stiglitz, “Equilibrium in Competitive Insurance Markets: An Essay on the Economics of Asymmetric Information”, Quarterly Journal of Economics 90 (1976), 630-649

    Stiglitz, Akerlof and Spence shared the Nobel.

    His political thought are not as mature as his highly formal works.

    @Dale: The Myth that Patents are a Monopoly
    –> Indeed. For an economist they are. For a lawyer they ain’t, a right of exclusion is not the same as a right of entrance. A patent is not a claim to property but a permission to gun down those who enter.

    Software is essentially math. It has no physical component.
    —> I mocked it recently. That is not the way the patent system thinks but a common path people from abstract sciences chose to explain the problem, and then they go for idiosyncratic philosophy of matter where the patent technocrat easily traps them in confusion. Whatever interpretation path you follow, “software is math” does not convince anyone. Have a look at the Asolif submission
    http://media.ffii.org/EbaReferral090430/pdf/ASOLIF_en.pdf
    Sorry, the formatting broke, made also a better formatted version. I found a formula which is a killer question for an audience trained in economics: “scarcity?”.

    Imric Reply:

    And patenting thought is clearer? *chuckle* In what universe? That IS preferable in the .pdf you cite, no?

    Roy Schestowitz Reply:

    Let’s go all the way up the tree and patent axioms like 1+1=2 as well.

    More patents=more innovation, right?

    André Reply:

    You know the concept of premature optimization.

    In the financial crisis people are fast to blame “moral”. An expert tells those who explore the analysis path better not to follow it.

    “Patenting software = patenting math” teachings are benevolent red herrings, part of a learning process.

  14. Dale B. Halling said,

    July 13, 2009 at 4:39 pm

    Gravatar

    Let me count the incorrect statements above:

    1) All property rights are enforced by the use of force – patents are no different
    2) Software innovation increase significantly when it was made clear that patent protection was available. As meausred by the amount of venture capital and other capital spent on software, the number of new products and the number of people employed in the software field. Again the emprical evidence is against you.
    3) Software is not math anymoe that all of engineering is math.
    Software is electronics. Any thing that is accomplished is software can be accomplished in hardware. The purpose of the software is to tell the general purpose hardware circuit which physical switches to open and close. Software code is just writting, but software inventions are electronic circuits

    Roy Schestowitz Reply:

    Patents are not property. They are not physical entities.

    Roy Bixler Reply:

    Software code is just writting, but software inventions are electronic circuits

    My experience is that, generally speaking, software engineers know little to nothing about hardware. They program algorithms and do not really care about the hardware necessary to carry out their instructions. My understanding is that it’s necessary to have a “particular machine” in order to have a valid patent and a general purpose computer does not count as such. The algorithm itself is not patentable and the application to a general purpose computer is still not enough to make a patentable invention.

    I know that this is a fine distinction and a point of contention, but to make a general purpose computer into a “particular machine” and to widely enforce software patents is to stifle innovation and cause a great deal of harm to software developers in general. If someone were to track what is not allowed because someone already has a software patent on it, that person would quickly conclude, because of the number of trivial software patents which have already been issued, that it is not possible to write a useful program without a patent violation. That state of affairs is just simply wrong.

    Roy Schestowitz Reply:

    It’s an inadequate comparison (electronic circuits) which is intended to deceive. It’s like a linguistics trick.

    Jose_X Reply:

    >> Any thing that is accomplished is software can be accomplished in hardware. The purpose of the software is to tell the general purpose hardware circuit which physical switches to open and close. Software code is just writting, but software inventions are electronic circuits

    Are you arguing that hardware that is composed or already invented parts plus software is not an invention or should not be given a patent?

    I agree.

    >> As meausred by the amount of venture capital and other capital spent on software, the number of new products and the number of people employed in the software field.

    Capital investments flow in if there is a gold mine to be had and few people digging relative to the total worth of the total gold sought to exist there.

    The government’s patent laws and patent granting are giving away for pennies rights to goldmines that belong to the people [US Constitution Amendments 1, 9, and 10 in light of Article 1 Sect 8].

    Also, I am curious how you calculated the very substantial amount of capital that has flowed into FOSS or into inventions that were not patented and hence were freely available for others to use? Did you even try?

    Roy Schestowitz Reply:

    Software is very unique and Free software is proof or this because it is freely (and legally) replicable. Don’t let the maximalists steer this debate towards medicine and apparatuses. It’s a convenient ground for them because it is not analogous.

  15. Dale B. Halling said,

    July 13, 2009 at 5:27 pm

    Gravatar

    You are right, patents are not property – patents are legal title to property. Title to land is also abstract. Only human imagination divides up land. The indians and other nomads do not recognize that land can be owned. The anti-patent crowd seems to have the same problem abstracting from the agrarian world to the industrial/information world. http://www.hallingblog.com

    Roy Bixler Reply:

    No, I believe it is the pro-patents crowd that is having trouble adapting to the information age.

    Roy Schestowitz Reply:

    Maybe we should also bring back slavery, slaughter Indians for their land, and demand money to save the lives of African children (pharma patents). Who needs civility? What is ubuntu anyway?

    les Reply:

    If there is no money in saving lives, if such are given away for free, then why did the chemists go to work every day to develop the cure? They need a roof over their heads and food in their stomachs too don’t they? If cures are given away free, those chemists go to work making weed killers and no cures are developed.

    Roy Schestowitz Reply:

    This issue you present here totally escapes the proposed solutions, such as government-funded (i.e. public-funded) research for life-saving drugs. To put people’s life and death in the hands of price-fixing corporations is insanely dangerous.

    Seen the film Constant Gardener? You should.

    Les Reply:

    Well patents are unrelated to that proposed solution. If governments do the research, then governments can get the patents. Either way, the government is free to charge or not charge for the cure.

    In the mean time, while we wait for you to get the government to extort money from one group of people to pay for cures for another group of people, we need patents to protect the investments people make for cures not funded by governments.

    Roy Schestowitz Reply:

    Either way, the government is free to charge or not charge for the cure.

    It’s about manufacturing, not research. And it’s about life, not profit.

    Les Reply:

    What?

    Patents allow companies to recover the cost of research that goes into developing new products and cures. Without patents new products can be cheaply reverse engineered and sold by others at a price that does not allow for the cost of the research to be recovered.

    You have failed to address that point, which I have now made several times.

    Roy Bixler Reply:

    You wrote the following earlier and I think it is the crux of our disagreement:

    It is very hard to get an obvious invention patented. So, your allegation is not believe able.

    My experience tells me otherwise. Here is an example of how a Web site could violate software patents in the EU:

    http://webshop.ffii.org/

    Most or all of these items are obvious to those who are familiar with the art of Web site design and would have been made available to the public without patents. In the US, the problem is even more severe.

    Another indication to me of the problem is the standard advice to anyone wanting to write a significant program to “not even try to research patents to avoid possible infringements because you will infringe a patent in any case and, if someone sues, the court finds that you have infringed a patent and the plaintiff can show that you were aware of it, you can be liable for triple damages for willful infringement.” If it’s regarded as inevitable that a software developer will infringe a patent whatever they do, that state of affairs is simply wrong. Software patents are specious at best and copyright is sufficient to prevent others from unauthorised use of software.

    Roy Schestowitz Reply:

    Programmers agree based on polls. And it is only their opinion that matters.

    Les Reply:

    Bixler -
    That web page is ridiculous and the patents it cites are not related to what it says they are. I selected one at random (number 14) and looked at the claims. It is a UPS patent and it is about method and system to dispatching a driver to PICK_UP a package and other aspects of automating the delivery process such as the automatic printing of a shipping label with barcodes etc. . It has noting to do with someone ordering something on line and asking for it to be shipped to them. The only web pages it would have a bearing on are those of FEDex and maybe the USPS and the like. They are big boys and can take care of themselves.

    Here’s a link to the document in question.

    http://www.epoline.org/portal/PA_1_0_FS/DocumentViewer?RLANG=en&RACTION=LOAD&RAPPNO=00921319.0&RCOUNTRY=EP&RIID=ANONYMOUS&RROLE=PUBLIC&RORGNAME=EPOPORTAL&RDOCPAGENO=FIRST&RDOCTITLE=International+publication+of+the+A2+Pamphlet&RDOCPAGECOUNT=237&RDOCTYPE=PDF&RDOCNO=EDYR4F2SDHEPLEI&NPL=false

    Whether or not it was obvious back in 1999 or not is a valid question. I can tell you this, EPO examiners are good and tenacious. If the EP allowed this application, you can be assured that they could find no evidence that anything like it had been done before. But if it was obvious, then its not valid and FedEx doesn’t have to worry about it.

    As for the rest of your comment, I’m sure there are a lot of chemical patents out there too and its hard to know if the drug or chemical you are working one is already patented. Somehow, the chemical and drug companies manage to find out. Yes somethings are difficult. Not everything can be done with point and click. Cowboy up and deal with it.

    Roy Schestowitz Reply:

    Drugs, unlike code, require more than a kid with a computer to develop.

    Roy Bixler Reply:

    That web page is ridiculous and the patents it cites are not related to what it says they are. I selected one at random (number 14) and looked at the claims.

    Selecting one case at random does not even come close to refuting their underlying argument.

    I’m sure there are a lot of chemical patents out there too and its hard to know if the drug or chemical you are working one is already patented. Somehow, the chemical and drug companies manage to find out. Yes somethings are difficult. Not everything can be done with point and click. Cowboy up and deal with it.

    You make many incorrect assumptions and, in general, sound like someone who is not familiar with software development. You have fallen into the fallacy that software is just like other fields, so it should be patentable just like them. You should take your own advice and deal with the fact that software is not like other disciplines and should not be patentable.

    Roy Schestowitz Reply:

    Software is strings; it’s more like poetry than devices. Poetry is shielded by copyrights, not patents.

    Jose_X Reply:

    Les,

    >> If there is no money in saving lives, if such are given away for free, then why did the chemists go to work every day to develop the cure? They need a roof over their heads and food in their stomachs too don’t they? If cures are given away free, those chemists go to work making weed killers and no cures are developed.

    How does FOSS get written if the product is given away?

    Amazing.

    Point is that there are at least two things you are not recognizing.

    One is that you can give away something yet charge for something related to that. Sometimes giving away something helps business or the market as a whole.

    Two is that many people make a living daily without relying on patent monopolies.

    >> we need patents to protect the investments people make for cures not funded by governments

    When you can do significant amount of the research from a PC, many will invest in this without the patent incentive (see FOSS and FOSS business models). When you need an expensive lab, then any patents would likely lead to conflicts and restrictions among a smaller number of people. Depending on circumstances, the economy and society might be able to bear that without too much pain or it might not (or it might even be furthered).

    >> Without patents new products can be cheaply reverse engineered and sold by others at a price that does not allow for the cost of the research to be recovered.

    Same applies to FOSS (reverse engineering is already for free.. just download the tarball), yet many make a living contributing to it.

    Amazing.

    OK, FOSS is different because actually manufacturing and distributing any tangible substance has very real costs (unlike distributing/copying software).

    >> I can tell you this, EPO examiners are good and tenacious.

    They can determine if the granting a 20 year patent would “promote the progress of science and useful arts” [ http://www.law.cornell.edu/constitution/constitution.articlei.html#section8 ] when they commit all of an average of less than a day’s worth of time to the entire patent granting process for any specific patent?

    It’s also true that they have incentives to give as many patents as possible.

    When in doubt, give it out.

    I mean it takes a court tons of money and man hours to resolve a patent conflict, yet these people take a fraction of those resources.

    Oh, and the courts aren’t necessarily ruling accurately even after all of that investment. Look at Bilski.

    Of course, if patent law is broken, it doesn’t matter how well these individuals carry out that broken law.

    >> Yes somethings are difficult. Not everything can be done with point and click. Cowboy up and deal with it.

    Ah, patent law at its best — adding sludge to the wheels of industry.

    Jose_X Reply:

    >> Software is strings; it’s more like poetry than devices. Poetry is shielded by copyrights, not patents.

    By all means, charge for the device.. but allow the poetry (the software) to be shared and function under copyright law and not patent law.

    Roy Schestowitz Reply:

    It’s also true that they have incentives to give as many patents as possible.

    When in doubt, give it out.

    Yes, staff of the EPO ran street protests to denounce it last year.

    Les Reply:

    I have written more code than most in assembler Z80, 8080, 8085, 8051, Algol, basic, fortran, pascal, C and C++.

    Additionally, I have designed electronic circuits.

    Software is just like any other engineering and is entitled patent protection just like the other disciplines.

    That patent system isnt perfect. Sometimes things that should be patented are rejected and sometimes things that should be rejected get allows. That is a reason to improve the system. It is not a reason to disqualify a whole area of industry.

    You have not explained why isoftwareshould not be patentable, other than you don’t want it to be because you want to copy the work of others.

    And you can read the claims of the other documents cited on that page and see for yourself that the page is a gross exaggeration at best and a gross lie at worst.

    Roy Bixler Reply:

    Software is just like any other engineering and is entitled patent protection just like the other disciplines.

    The fact that you make this statement is what makes me believe that you do not really understand software development.

    You have not explained why isoftwareshould not be patentable

    Yes, I have, but you have ignored what I said. It has been amply explained why software shouldn’t be patentable. I suppose you, if I believe your statement of qualifications, are one of the few in the profession who believe that there should be more government interference in how they are allowed to do their work.

    , other than you don’t want it to be because you want to copy the work of others.

    No that is also incorrect but, even if I did, what would be wrong with that? As I’ve said, copyright is sufficient to protect unauthorised use of software. It should also be possible to independently create something, which can be done in the software world with relatively little effort and resources, and not have to worry about whether it violates a patent.

    This is the second time you have referred to “copying the work of others.” I believe that you are well aware that has only a very limited bearing on the matter at hand, software patents. That reinforces my belief that you have ignored what I and others have said previously and are trying to trivialise this subject.

    You are probably one of these people who freely uses the term “intellectual property.” As Stallman has said, anyone who does so is either confused or trying to cause confusion. Overall, I expect that we will have to agree to disagree on whether software deserves patent protection.

    Jose_X Reply:

    >> Software is just like any other engineering and is entitled patent protection just like the other disciplines.

    It’s not entitled to anything (in the US) that would violate the Constitution.

    Where does this entitlement come from?

    The US Constitution says (paraphrased based on what I have read): government can grant monopolies for limited times in order to promote the progress of science and useful arts. Powers not bestowed to Congress are reserved to the states and to the people.

    >> I have written more code than most in assembler Z80, 8080, 8085, 8051, Algol, basic, fortran, pascal, C and C++.

    Yes, and if you value the time you put towards those endeavors and the quality of the products you produced, you likely would not be too happy if someone had described in general terms the things you created and then tried to block you off from those products.. unless perhaps you have benefited greatly from the patent system and decided it was worth losing out on product creation in order to enjoy the high life afforded by extortion (your direct extorting or those of others on your behalf).

    You are infringing on other peoples right to creation and sharing.

    You are also supporting the granting of obscene monopolies.

    Your other comments also suggest you did not know that many people contribute to FOSS willingly, without copying anyone else yet providing knowledge everyone else can leverage, and many while making a living or in support of their primary business.

    >> You have not explained why isoftwareshould not be patentable, other than you don’t want it to be because you want to copy the work of others.

    Will you address any of the following comments?

    [Most were addressed to someone else, but I expect you disagree with many of the points expressed. I am not about to repeat everything here.]

    http://boycottnovell.com/2009/07/11/in-re-bilski-vs-software-patent/comment-69657
    http://boycottnovell.com/2009/07/11/in-re-bilski-vs-software-patent/comment-69663
    http://boycottnovell.com/2009/07/11/in-re-bilski-vs-software-patent/#comment-69321
    http://boycottnovell.com/2009/07/11/in-re-bilski-vs-software-patent/comment-69643
    http://boycottnovell.com/2009/07/11/in-re-bilski-vs-software-patent/comment-69648
    http://boycottnovell.com/2009/07/11/in-re-bilski-vs-software-patent/comment-69652
    http://boycottnovell.com/2009/07/11/in-re-bilski-vs-software-patent/comment-69675

    >> And you can read the claims of the other documents cited on that page and see for yourself that the page is a gross exaggeration at best and a gross lie at worst.

    I don’t think I read what you are talking about there. I wasn’t replying to that information.

    les Reply:

    When I click on the links you asked me to review all I get is:

    Boycott Novell

    Exploring the reality behind exclusionary deals with Microsoft and their subtle (yet severe) implications
    Not Found

    Sorry, but the page you requested cannot be found.

    les Reply:

    Re:

    –Yes, I have, but you have ignored what I said. It has been amply explained why software shouldn’t be patentable. I suppose you, if I believe your statement of qualifications, are one of the few in the profession who believe that there should be more government interference in how they are allowed to do their work.–

    Once again, rather than answering the question you say you have answered the question when you have not. All that has been said is software is different. What you haven’t said is why is it different and why that difference justifies not providing patent protection for inventions implemented in software.

  16. Roy Schestowitz said,

    July 13, 2009 at 5:34 pm

    Gravatar

    The indians and other nomads do not recognize that land can be owned.

    Yes, and…?

  17. Yuhong Bao said,

    July 15, 2009 at 1:14 am

    Gravatar

    “IBM relies on gullibility and blind trust to a certain extent.”
    I think the trust was deserved. Who’s patent promises would you trust more: IBM or Microsoft’s?

    Roy Schestowitz Reply:

    We can trust neither, but IBM’s history makes it easier to trust than Microsoft.

    Without software patents we require no “”promises”.

    Yuhong Bao Reply:

    “but IBM’s history makes it easier to trust than Microsoft.”
    Yep, that is my point.
    “Without software patents we require no “promises”.”
    Certainly not. After all, if there is no software patents, why do you need the promises in the first place?

  18. les said,

    July 15, 2009 at 6:03 am

    Gravatar

    Regarding:

    —Yes, and if you value the time you put towards those endeavors and the quality of the products you produced, you likely would not be too happy if someone had described in general terms the things you created and then tried to block you off from those products..–

    You’re right, I would not be happy. I would be frustrated and aggravated. I would then call the patent owner, congratulating her for solving the problem first and ask for a license or, if i managed to actually do something unique, a cross license. If she says no, I would go design something else. After all, software evolves so fast that both of our products would have been obsolete in a few weeks anyway.

    Roy Bixler Reply:

    You’re right, I would not be happy. I would be frustrated and aggravated. I would then call the patent owner, congratulating her for solving the problem first and ask for a license or, if i managed to actually do something unique, a cross license. If she says no, I would go design something else.

    Would you still be so gracious if it only took you a few hours of work to arrive at your solution and you realised that the patent was obvious, overbroad and never should have been granted in the first place?

    After all, software evolves so fast that both of our products would have been obsolete in a few weeks anyway.

    Exactly. That’s one reason why software doesn’t deserve patent protection. A 20 year monopoly in software terms is much longer than in other fields because the evolution of software is so much faster.

    Les Reply:

    Well, if software evolves so fast, why do you want to do something that was patented last year? Move on.

    Everything is obvious in hindsight. I’m sure someone looked at a bird, and then looked at the wright brother’s patent and said, IT’S OBVIOUS.! How did they get this crap patented?!

    The frustration is the same in every field. You are not special. The frustration is a necessary evil to protect investments. Some programmers may be against patents, but the guys who pay their salaries are not.

    Roy Schestowitz Reply:

    Realisations come from aggregation of ideas and are thus rarely original.

    Complex recipes may merit further debate.

    Roy Bixler Reply:

    Well, if software evolves so fast, why do you want to do something that was patented last year? Move on.

    If software evolves so fast, then why is it even useful to patent it (i.e. why would you want to prevent someone from doing something you did last year if you could so easily move on from that and improve it by the time you’ve gotten the patent approved?)

    Some programmers may be against patents

    Most programmers are against software patents.

    Roy Schestowitz Reply:

    It’s not duration of the monopoly that’s at stake. It’s the nature of it. It is not needed, according to programmers.

    Les Reply:

    –If software evolves so fast, then why is it even useful to patent it (i.e. why would you want to prevent someone from doing something you did last year if you could so easily move on from that and improve it by the time you’ve gotten the patent approved?)–

    Pardon my sarcasm. That’s my point. Software doesn’t evolve that fast. You guys just say it does.

    Roy Schestowitz Reply:

    It does. But patents slow it down.

    Les Reply:

    Good. Maybe that will give you time to check for bugs. :-p

    Roy Bixler Reply:

    Bill Gates doesn’t agree with you. He justifies the famous Microsoft paranoia on the rapidity at which software evolves. Here is a quote for you: “We’ve [Microsoft has] done some good work, but all of these products become obsolete so fast… It will be some finite number of years, and I don’t know the number — before our doom comes.”

    Roy Schestowitz Reply:

    For interpretation of another quote, see:

    http://www.nytimes.com/2007/06/09/opinion/09lee.html

    WHAT a difference 16 years makes. Last month, the technology world was abuzz over an interview in Fortune magazine in which Bradford Smith, Microsoft’s general counsel, accused users and developers of various free software products of patent infringement and demanded royalties. Indeed, in recent years, Mr. Smith has argued that patents are essential to technological breakthroughs in software.

    Microsoft sang a very different tune in 1991. In a memo to his senior executives, Bill Gates wrote, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Mr. Gates worried that “some large company will patent some obvious thing” and use the patent to “take as much of our profits as they want.”’

    Jose_X Reply:

    >> When you say this, you’re saying that there’s nothing wrong with singling out women as technological chowderheads who need assistance from the (presumably male) members of the “Church or EMACS” in order to be (involuntarily?) “relieved” of their “virginity”.

    That would be one fairly literal translation. Interesting you would keep favoring a literal translation of what is fairly widely recognized to be some type of a performance and whose author has said is not meant to be taken literally.

    http://en.wikipedia.org/wiki/A_Modest_Proposal

    Did someone tape that presentation so we could judge for ourselves?

    Insisting on a literal interpretation might be confused for character assassination.

    Jose_X Reply:

    Sorry. Posted that last comment in the wrong place.

    Roy Schestowitz Reply:

    Heh. Well, RMS dislikes patents too.

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