And yes, no one ever knows for sure what the rulings will be, mainly because the parties are often very careful to only allow very specific, narrowly-construed questions ever be eligible for a ruling.

In the end, all of the companies involved in this software patent myth have a vested interest in its perpetuation, lest they allow competition. Which is another reason I think TomTom would settle, rather than risk invalidating their own "IP" assets.

Try going here http://www4.law.cornell.edu/uscode/35/usc_sup_01_35_10_II_20_10.html and then following the link into section 100 “Definitions.”

So, I can be wrong, but let me point out a few things.

http://www4.law.cornell.edu/uscode/35/usc_sec_35_00000100—-000-.html If you look at this link, you will see that “process” is partially defined as “process, art or method, and includes a new use of a known … machine….”

If you look at the patent currently being used against Red Hat that I quoted earlier, you’ll see that the software patent is on “a method of operating a system that includes: a display; a user input device ….”

So, their “software patent” is a patent on a supposedly new “use of a known … machine,” just as accepted by Title 35 (US law).

To put it in other words, it appears, based on layman’s reading of a part of the US patent law, that you can in fact get a legal patent on a new way to use a computer. One of the patents being used against Red Hat is about just such a “new” way of using a computer.. by creating multiple “workspaces”.

[Aside: We can argue that the computer is still only being used as originally created, to run *any* software (let's assume it was patented this way), and that the new specified process ("workspaces") is but a special case of use of a computer which overlaps with past general patent on computers. However, courts may rule that even if the computer was created with this intention, that this is too vague. It would be like the creater of the transistor trying to patent "any and all uses of this device." If allowed, this would pre-empt any patent that would ever use something with a transistor in it. Anyway, there are contradictions or at least a lot of gray fuzzy areas implied by the patent laws. Courts get last say on existing laws, whether you think that is fair or not, and you can't anticipate what the ruling will be.]

So software itself is not a machine, etc, that can be processed, but the patent used against Red Hat was worded to describe a new way of using a computer. And this appears to be patentable subject matter.

The IBM SQL patent shown and the FAT patent may not be worded properly. That is, these patents might be laying claim to inventions that are not something you can patent. In other words, Microsoft did not (eg) claim to patent a new way to use a computer (haven’t read that patent, btw). IBM apparently did not patent a machine or a process tied to a machine. I get the feeling these things could be rectified through proper re-wording. For example, Microsoft might be able to amend (?) the patent to describe a way of using a computer: by storing data this and that way (as per FAT).

So while you can’t patent a FAT. US law may (stupidly) allow you to patent the using of a computer by storing data in a FAT format.

I’m just reading this over quickly and making some guesses. We’ll see what happens, but I don’t think Bilski saved the day. [I oscillate over just how good Bilski was].

In the earlier reply, I was trying to argue (layman-ly) that the US patent law should not allow you to patent software if it pretends to fulfill the requirements of the US Constitution. The US Constitution takes precedent over any law Congress passes since the Constitution is a contract among the States and cannot be undone/changed/amended as easily as Congress can pass laws.

I really think there may be valuable points in that earlier reply, but I am a layperson and have not tried to argue too much along those lines (it was only yesterday that I specifically read parts of the Constitution which I invoked in the earlier reply .. I have ideas but have not studied these legal papers or law except in passing).

One thing that guides me is the equitable bent of rulings. If the law is ever vague in some point, you can try to get the judges to rule in a matter that seems most fair to all parties based on what the law apparently was trying to accomplish. Software patents don’t work (something you’d have to argue well in court), and the Constitution is written such that I think you can argue (and I attempted this above in part) that patents are acceptable only if they help not hinder.

Software is not patentable, it is merely mathematical algorithms. In order to be patentable, they’d need a machine or device of some sort, copyrights and trade secrets apply to software. If the folks from Redmond were Microchip instead of Microsoft, they’d have a better chance.

By loading/running software on a general purpose computer – what it was invented to do, there is no transformation – the PC is still a PC and is capable of running any other compatible software as well.

…There have been interesting patent rejections coming from the USPTO’s Board of Patent Appeals and Interferences (BPAI) since the Bilski ruling was handed down by an en banc hearing of the Court of Appeals for the Federal Circuit (CAFC). One is the rejection of one of IBM’s database query patents. It was rejected because the innovation isn’t “tied to a particular machine”. So it’s a happy coincidence that MS claims their technology is running on all sorts of devices. Foot, meet mouth.
The BPAI goes on to justify the rejection by pointing out that the “system” on which the innovation operates is “not recited in terms of hardware or tangible structural elements”, which is to say that the patent is rejected because the elements of the claim are “implemented solely in software or algorithms”.

Have faith, the USPTO and the Courts are coming around…

We need a stronger decision or a favorable change in the law.

OR ..

..to have the current patent law be called unconstitutional wrt inventions over software “methods” as above and anything similar.

I think patenting (eg) software methods is unconstitutional http://www.usconstitution.net/const.html . The reason being that in today’s world, the US Constitutional support for patents is not fulfilled. They don’t “promote the progress of science and the useful arts”. At which point, Amendment 4 might be violated (abridge speech), but likely Amend 10 is violated: rights not reserved to Congress are reserved to the states and people.

Amend. 4 or 10 violation would occur because the patent restrictions (found in USC title 35) applied to software “methods” along the lines of the Red Hat example above restrict significantly and unreasonably people’s ability to create and share and various other things.

Tied in to this unreasonableness and to the large number of people so restricted and to the fact the arts and sciences are not promoted ..is the nature of software (though models.. accessible to everyone without interference and cheap to implement and distribute, ie, to create and share), its low overhead for participation (many are restricted in practice by the monopoly grants), and the terribly broad scope of such patents being granted (they cover the author’s discover/invention and then a whole lot more). [Note: This contrasts in part with copyrights on software which don't step on too many people's toes (they are much more narrow); hence, they may arguably end up promoting the arts and sciences and apply to only the author's writings and discoveries, but worse case may not restrict people too much (plagiarism laws or whatever would apply though).]

How/why does Amendment 10 apply? States manage business laws, for example, which restrict creation and sharing somewhat. You also have Congress rights like the creation of money which also restricts creating and sharing. However, it would be for each state (the 50 states ..and territories I suppose) to consider the patenting question once it stops being a law that promotes the arts and sciences OR its reach, using many metrics, goes beyond protecting the author for *his/her* work (only) — read “Powers of Congress” in the Consti link above. Giving the states and people the remaining powers was intentional by design of the Constitution. It allows for many matters affecting daily life to vary across states and the citizen local populations, giving citizens the option to pick where they will reside and hence deal with law variations.

I will rework the above explanations. Some of what I just wrote, I only thought about precisely in the last hour as I read over bits of the US Constitution (I was trying to give some more formal meaning to “the right to create and share”.)

Note also that mono following dotnet so closely complicates this since Microsoft’s and trolls’ possible patents on dotnet, even if restricted significantly in scope by the courts, in light of the above arguments, would still cover mono. This is a shame since it’s not that difficult to change mono around enough and still get most of the same product features. It might one day be ruled that some particular mono fork that also would fall under patents affecting mono would be safe nevertheless after a court ordered narrowing of the patent’s scope to the specific invention described in the patent application. And, as mentioned here (though not formally proved or exhaustively argued) http://boycottnovell.com/2009/02/04/the-api-trap-part-1/ , it’s an exercise to create APIs that violate your patents. Lesson: avoid the API of patent hostile aggressors; otherwise, even a favorable court ruling limiting software patents’ scope would not save you.

Here is a pretty concise look at Microsoft’s FAT patents through Bilski glasses.

I think what NotZed was suggesting is that these devices should come with the device drivers for the new FS for Windows/Mac/etc. Typically, these devices already have some sort of custom software anyway (ok, so thumb drives don’t, but anything more complicated than that usually does).

But you would have to store the drivers inside a CD or a… FAT partition.

The user will prefer the one that doesn’t require you to install anything to be used.

It’s not about one single patent or technology. It’s about mimicking/reverse-engineering Microsoft, so Mono comes to mind too.

TomTom gave Microsoft a fight and it continues to do so, which makes it praise worthy.

If enough of these devices switched to the new FS, then Microsoft would be forced to support it. The key is to get all of the devices (or at least all of the major ones) to switch. “United they stand, divided they fall.”

NotZed: That’s difficult, first of all, there are already zillions of flash drives formatted in FAT16/VFAT/FAT32 variation. Users are just too lazy to bother. About flash drives shipping formatted in another filesystem, I can already see MS not supporting this filesystem at all, so users will just return them…

It seems they (MS) have been trying to introduce a new filesystem specialized for flash drives, somehow I think that after messing up FAT they are going to push this new filesystem and it is going to be ‘open’ in the same way .net and OOXML are ‘open’. ( http://en.wikipedia.org/wiki/ExFAT )

FAT is pretty shit to start with, but with flash drives and usb drives getting so big, it is also high time they started looking at a decent filesystem anyway. Shit knows there are plenty to choose from, and pretty soon just about every device will be using a linux kernel anyway. Which is really what it comes down to I guess – windows mobile/ce failed, try to extort their way into money from their competitors.

(I realise that issue is probably a small one overall in this case, but it would benefit everyone).

Maybe we can get Baystar to invest in TomTom?…