11.29.11

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Software Patents Are Missing the Point, Serving Multinationals

Posted in America, Europe, Patents at 3:10 pm by Dr. Roy Schestowitz

Snowflakes

Summary: An interlude about what software patents are doing and why they need to be abolished or at least not spread any further

PATENT systems were created to encourage publication, but given that source code can be published or withheld for good, what is the point of software patents when it comes to publication? One site specifically explains how to get them in the US. “I promise myself not to use any Oracle Database, their patent aggression against Dalvik is insane and should be punished,” writes the FFII’s president, who helps find much of the news about patents, especially in Europe. There is always an attempt to extend US patent law to Europe, which would be good for US multinationals and atrocious for European businesses. We shall write about that separably. The Bilski case helped show that the system in the US is quite incapable of ridding itself from software patents and this analysis from a fortnight ago says that:

Internet and entertainment companies should rejoice. The U.S. Court of Appeals for the Federal Circuit fit a square patent peg into a round cyberspace hole. In Ultramercial v. Hulu, the Federal Circuit reversed a decision of the U.S. District Court for the Central District of California and held that a process for monetizing the transmission of data over the web using advertisements does not qualify for the abstract idea exception to patentability. Many legal scholars were concerned that the Supreme Court’s decision in Bilski v. Kappos – upholding the rejection of a business method patent to hedge energy markets because hedging was an abstract idea – would eviscerate business method patents and potentially leave services in cyberspace without patent protections. However, the Federal Circuit’s decision fits service innovations in cyberspace within the business method patent category.

The goal to strive for is elimination of software patents in the United States. Failing that, we must ensure that software patents do not spread to other continents and nations.

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5 Comments

  1. Michael said,

    November 29, 2011 at 10:33 pm

    Gravatar

    FUD:

    PATENT systems were created to encourage publication, but given that source code can be published or withheld for good, what is the point of software patents when it comes to publication?

    Software patents are not about the code but about methodologies and functional behavior. When it comes to source code itself, that is protected by copyright, not patents. Given how much you write about software patents and have such a strong opinion on them, it is mind boggling that you could be this ignorant on the subject.

    FUD:

    There is always an attempt to extend US patent law to Europe, which would be good for US multinationals and atrocious for European businesses.

    You state this with no support. None. And having similar laws work across many nations would make thing much easier for *any* company selling its goods internationally. Still, I will grant that this does not mean the US system is the one that should be used!

    Para-Doxe Reply:

    «Software patents are not about the code but about methodologies and functional behavior. When it comes to source code itself, that is protected by copyright, not patents. Given how much you write about software patents and have such a strong opinion on them, it is mind boggling that you could be this ignorant on the subject.»

    I think this is not what Dr. Roy Schestowitz want to say. Please, read again.

    Michael Reply:

    I cannot speak for what Roy “wants” to say. What I can note is how he spoke about software patents in terms of source code – which is not what software patents are about!

    It really is mind boggling how Roy, who is so obsessed on this topic, can be so ignorant of it. We are not talking a minor technical detail here – we are talking a core concept. And Roy clearly had no idea.

    Para-Doxe Reply:

    No.

    «PATENT systems were created to encourage publication, but given that source code can be published or withheld for good, what is the point of software patents when it comes to publication? »

    Initially, the patent system where created to encourage publication of the manufacturing process. But in software, we haven’t manufacturing process: We have source code.

    Source code are already protected by copyright and software patent don’t guarantee publication of source code. So, Dr. Roy Schestowitz try to demonstrate the irrelevance of the patent system software.

    At the beginning, the patent system was a win-win agreement: You publish the manufacturing process and you have a temporary monopoly on it. You win because you have a monopoly and Humanity win because your creation isn’t lost and your monopoly is temporal.

    But now with software patent we have only a monopoly system and, even if it’s temporary, each monopoly are valid for too long time perspective to the concerned field. In addition, software patents are given to anyone, anyhow and too many.

    Michael Reply:

    When talking about patents, source code is not relevant. Roy was mistaken to bring it up. It showed his ignorance.

    Again: Software patents are about methodologies and functional behavior. Copyright does not protect this. Patents do.

    Talking about source code, which does not protect what patents do, does not “demonstrate the irrelevance of the patent system software”, whatever that means.

    This is not complex: copyright covers the code, patents cover the methodologies and functional behavior.

    On your other (off topic) point about patents lasting too long and the overall system having many flaws, nobody is saying otherwise.

    So, yes, the current patent system is grossly flawed, but since copyright does not protect the methodologies and functional behavior of software, what do you suggest be used to do so?

    Roy’s answer seems to be to just not. In other words: forget about protecting innovators. Which is silly and is not going to happen – esp. when argued by people who confuse the concept of protecting the code with protecting what patents do.

    Roy repeatedly claims that patents are not needed because copyright protections exist… but given how they protect different things his argument is absurd. It is like saying we do not need the military because eating well offers protection from some diseases… and thus we are protected. Only someone completely ignorant of the system would try to push such irrational nonsense.

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