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10.31.11

Shocker: Man With First Software Patent Defends Software Patents

Posted in Patents at 4:23 am by Dr. Roy Schestowitz

Martin Goetz

Summary: Martin Goetz speaks in favour of software patents again, but his arguments are full of holes

PEOPLE who came from Microsoft tend to defend Microsoft (this includes the leadership of Xamarin, whose COO seems to be the only top manager without Microsoft background). Businesses with many software patents (like IBM and Microsoft) tend to promote software patents in Europe. Marty of software patents fame or infamy (depending on whose side one is on) is still a top promoter of software patents. But why does he get so much attention from the press? He is clearly biased because he was the first man to get a patent on software.

“I have been involved in this software controversy for many years,” he writes. “It began when I and my small software company, Applied Data Research, applied for a patent in 1965 for a Sorting System.”

Well, using other people’s knowledge and work. But let’s disregard for a moment the fact that anything he ever created built upon other code. He goes on to saying something which in no way contradicts the fact that software is mathematics and in fact reinforces this fact. For example: “Highly skilled personnel are employed in these companies and many have advanced computer science degrees, including PhDs. And because of their complexity, many programs are written using software engineering disciplines.”

“But let’s disregard for a moment the fact that anything he ever created built upon other code.”Or mathematics? And equations? Seriously, scientific programming is all about formulating rules and applying them in code. Do we want a monopoly on rules that are immutable? “When these programs are inventions,” he claims (whatever “invention” actually means), “patent protection is important to help protect these companies’ investments.”

Utter nonsense. Those companies rely a great deal on using code and knowledge provided by others. How would a company cope financially if it had to ‘license’ each and every pertinent idea it codifies? That article just fails on so many levels and it often demonstrates the author’s arrogance because he thinks that his own ‘invention’ (a sorting algorithm) is so much more sophisticated than the machine and coded framework he ran his program on. Well, the FFII’s president asked us in IRC, “have you seen the article software is hardware?” He quoted this article, adding a ludicrous quote: “It is a fact that software and mental processes are interchangeable, thus mental processes are patentabe” (this is Aptly tagged #wrong).

Calacanis, whom I once worked for in Netscape.com, says he never filed any patents. There are many like him who take pride in it too. Quoting the report:

Jason ‘Mr. Startups’ Calacanis may not do patents, but he has just done an episode of his weekly TV show where he brought in a seasoned patent attorney and a prolific inventor to take us through the latest developments on the US patent scene

Google too was never happy about software patents. It-reluctantly had to buy some for “defensive” purposes and now it also indexes patent applications. To quote the Against Monopoly Web site:

Google has had its own issues with patents. Like much of the rest of the software industry, it avoided filing for them for some years, but competitive patenting has taken over the industry in the drive to gain a monopolistic advantage or prevent others from doing so by establishing a patent pool to force cross licensing. By making it easier to challenge applications and even granted patents, putting them on line should make bad patents rarer. The problem of identifying and proving prior art remains.

A lot of work from 20+ years ago prelates the Web, so proving prior art is not always simple. We need to fill some gaps by online preservation and Google is trying to help. We already lost track of Cablegate, Gates’ history of crimes (he was allegedly arrested at least twice), and ‘old’ Novell (some Comes vs. Microsoft material that we had reproduced before Microsoft buried it is proving to be very helpful). Some of it predates the World Wide Web.

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7 Comments

  1. Michael said,

    October 31, 2011 at 12:16 pm

    Gravatar

    FUD:

    “When these programs are inventions,” he claims (whatever “invention” actually means), “patent protection is important to help protect these companies’ investments.”

    Utter nonsense.

    If you really think this, Roy, then say why. But you do not. Instead you post a straw man.

    Those companies rely a great deal on using code and knowledge provided by others.

    Nobody has suggested that current inventions do not benefit from past inventions. Could the incandescent lightbulb have been invented without the prior invention of many forms of metal working? No. Same with cars. No metal working – no cars as we know them.

    FUD:

    That article just fails on so many levels and it often demonstrates the author’s arrogance because he thinks that his own ‘invention’ (a sorting algorithm) is so much more sophisticated than the machine and coded framework he ran his program on.

    He never said that. You made that up.

    A lot of work from 20+ years ago prelates the Web, so proving prior art is not always simple.

    And this is true. It is not always simply and is certainly not black and white. All too often amazingly dumb decisions have been made in the US patent system (and elsewhere I assume).

  2. walterbyrd said,

    October 31, 2011 at 6:08 pm

    Gravatar

    How can you criticize Google for defending itself in the only way that is possible for Google to do so?

    Patent thugs like Oracle, Microsoft, and Apple, would not have ganged up on Google, if Google had not been so defenseless at the time.

    Sadly, Google has been left with the unpleasant choice of acquiring patents, or being sued out of business by a conspiring gang of abusive scam artists.

    It may be worth noting, Google has not used it patent arsenal offensively. How many major technology companies can say that?

    Michael Reply:

    FUD:

    How can you criticize Google for defending itself in the only way that is possible for Google to do so?

    Who is doing that?

    I am noting Roy’s hypocrisy. Heck, he is the one who attacks Apple and calls them an aggressor but does not offer any other way for them to defend themselves.

    Do you have any better ideas on how Apple should defend themselves against the attacks by Android, Google, Samsung and the like?

    FUD:

    Patent thugs like Oracle, Microsoft, and Apple, would not have ganged up on Google, if Google had not been so defenseless at the time.

    You do not like how Apple defended themselves against attacks by Android, Google, Samsung and the like… so how do you think they should have reacted to the attacks? Seems to me giving the attackers a chance to make things right and then taking them to court if that fails (as it did) makes sense.

    FUD:

    Sadly, Google has been left with the unpleasant choice of acquiring patents, or being sued out of business by a conspiring gang of abusive scam artists.

    What? Conspiracies of scam artists? You made that up.

    FUD:

    It may be worth noting, Google has not used it patent arsenal offensively. How many major technology companies can say that?

    Google has sued people over IP infringements. But even if they had not, so? Does this give then the right to be an aggressor against Apple and others? I do not see the connection.

    Needs Sunlight Reply:

    Not all of the scam artists can be counter-sued. There are also trolls to contend with. It will take too much time and money to fight each patent individually. The money can be much better spent to eliminate software patents entirely. That would solve the root of the problem.

    Michael Reply:

    If you eliminate software patents completely, what mechanism do you replace it with in order to help protect the years of work and millions of dollars put toward innovation?

    I agree patents are heavily messed up – but eliminating them without having such a solution does not make things better.

  3. walterbyrd said,

    October 31, 2011 at 10:19 pm

    Gravatar

    When did Google sue Apple? Please stop lying.

    In fact, when did Google initiate patent litigation against anybody?

    Apple is a successful patent parasite. Apple has no ideas to defend. For example: JooJoo/Crunchpad had rounded corners before Apple.

    Apple has done an amazing job abusing the patent system, and legal system, I will give Apple credit for that.

    How is Apple “defending itself?” Samsung clearly sued Apple in retaliation to Apple’s bogus lawsuits against Samsung. Not to mention Apple’s bogus lawsuits against HTC, and others.

    Michael Reply:

    FUD:

    When did Google sue Apple? Please stop lying.

    In fact, when did Google initiate patent litigation against anybody?

    The implication here is someone said Google sued Apple over patents. Nobody said so, thus you are pushing a false claim.

    FUD:

    Apple is a successful patent parasite. Apple has no ideas to defend. For example: JooJoo/Crunchpad had rounded corners before Apple.

    The implication here is that someone has said the JooJoo/Crunchpad did not have rounded corners before Apple. Nobody said so, thus you are pushing a false claim.

    FUD:

    Apple has done an amazing job abusing the patent system, and legal system, I will give Apple credit for that.

    The implication here is that someone has shown where Apple abused the patent system. Nobody has shown so, thus you are pushing a false claim.

    Question:

    How is Apple “defending itself?”

    As shown, Samsung has been very heavily copying Apple’s ideas – crossing the line from being inspired to just being absurd.

    http://goo.gl/4mQI9
    http://goo.gl/S2AJR
    http://goo.gl/bWDs6
    http://goo.gl/NjrfV

    Apple has responded to this attack by trying to stop it. The fact Samsung has done as shown has not been refuted in any way.

    FUD:

    Samsung clearly sued Apple in retaliation to Apple’s bogus lawsuits against Samsung. Not to mention Apple’s bogus lawsuits against HTC, and others.

    You left out the start of the battle, shown above. This is openly dishonest of you. You also claimed Apple’s suits have been “bogus” but in at least some cases the courts have decided otherwise. Samsung did just win a reversal in one case.

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