Much of what you say is right on target. The Patent Office cannot search much because it was never patented, but I think you are missing the bigger picture. Large software companies never (or almost never) enforce their patents against others with patents. To the extent that software patents are enforced it is small businesses suing large companies, not the other way around. Large companies do bully many software companies, but the ones who are bullied are the ones who have decided they did not want to obtain software patents themselves. So they have followed a business plan that ensures bullying, that is hardly a problem caused by the Patent Office or the government.

You are not correct when you say that enforcing patents is too costly for most companies to consider. Once upon a time that was certainly true, but today there are an ever increasing number of litigation firms willing to take patent cases on a contingency basis. At this point if you are not able to find a law firm to take the case on a contingency basis it is because the case is not very good, the patent is not very strong or there is no likely infringement. A small company that is being infringed by a large company is the darling of the contingency fee litigators.

Small companies do not have a realistic choice to skip the whole process, and when they do that they ensure that they will be targets and never anyone to take seriously in the industry. The unfortunate truth is that software companies used to be able to operate without any business sense. Those days are long gone.

-Gene

If the computer has the ability when it is first plugged in then why does it need software at all? Perhaps you have stumbled on a truly innovative computer, namely one that does not need software in order to perform.

Your chair analogy is not the best one. A chair can perform a function as a result of its structure and without any additional assistance. A computer, on the other hand, cannot. If you doubt this put together a computer, do not load an operating system, and then try and do something simple like send e-mail or surf the web. I think you will find that your computer has a real tough time doing even simple tasks without a lot of further assistance. The chair, on the other hand, operates fine immediately and requires nothing addition in order to function.

-Gene

In my profession, I am often handed a computer with absolutely no information in its memory. I am told what my employers want it to do, and then I begin a thought process about how that thing could be done by a computer. I record, then refine this thought process as much as possible, in preparation for putting the recorded thought into a form that the computer can consume. After I have put it into this form and fed it into the machine, I clarify my thought process and correct the record until the computer can accomplish my goals exactly.

If the thought process included an “interpreter,” I can then do the same process again with one difference: instead of rendering the thought into a form that a standard form that the computer can consume out of the box, I have installed the interpreter to allow the computer to understand a form that is situationally preferable to me, so I can render it to that. And that can also be an interpreter. Sooner or later, the situation gets to the point of end user software (unless the software is intended to control other machines), where I am basically installing an interpreter of another name that tries to determine your thought processes, especially whether you were trying to express “rhythm” when you typed “rithem.”

The computer has the ability to do this when it is first plugged in, we just haven’t asked it to yet. Desiring and asking doesn’t add to what it can do in any way. Saying that a computer is useless before it is programmed is akin to saying that a chair is useless before it is sat in. It’s philosophically an argument against all patents _excepting_ method patents.

Gene,

I really like most of what you say here and hope you don’t mind if I lift some of it for responding to a Bilski rejection at the USPTO.

However, when it comes to the above-quoted statement, I must vehemently object. A programmed computer is not the same physical structure as the apparatus with all its memory locations zeroed out or filled with random 1′s and 0′s. In fact there is a question as to whether you could justifiably call such a pile of metal and silicon a “computer” given that it won’t usefully “compute” anything. It will just convert electricity into heat energy. Thus the thing should be called a toaster or an electric heater, not a computer.