As for the Bias thing I agree everyone is biased. I’m in IT, your a patent attorney. I even think the FSF idealogical pursuit is way too far and I’m an open source advocate.

You said that you were a critic of the patent office. I couldn’t agree more.

And you are right, we do see problems with the patent system regarding patents and our end results are different. I see removing software patents as a potential solution, that although will not lead to the best result, it will lead to a better result than what we have now.

I’m sure you have thought up your own solution.

Thank you for this nice little discussion, it has been very interesting.

Kind Regards,
Adam Fitton

You severely understate the problem when you say at the end it is inefficient. I agree completely, and I agree at least in principle with a system that rewards research based on resources expended and effort. Unfortunately, to get to a “truly just” system it would need to be a sliding scale that could be manipulated and create its own inefficiencies to implement. I am afraid we are stuck with some kind of a mechanical system, but how do we make that better?

It seems that we do not disagree all that much, expect perhaps in the end result. It seems we see the same problems, perhaps from different angles. What I see is large companies getting patents issued in the business method and software space at lightening speed, and where there is no true innovation. I see small companies not getting patents or being delayed for many years. That is a huge problem. I am not willing to jump to conspiracy, but the unequal treatment does make me scratch my head and wonder.

Software patents do create difficulties for everyone, but I don’t see that as a justification for doing away with software patents altogether. This is what the patent system is intended to do on at least some level, and intentionally. Through disruptive forces that should (and usually does in many technical areas) force people to innovate to the next generation. Does that happen in software? I don’t know, that is a good question. It is hard to know because in the software space there are so few major players and they are so enormous that monopoly and oligopoly skewing of the system is probably far more important a consideration than the impact patents have. Patents can be the great equalizer for small businesses, and I am 99.99% sure that is the major reason the same oligopoly tech giants want weaker patent rights; namely so that their dominance cannot be challenged by small businesses.

As far as your last comment in your previous comment, you are probably right on some level. I am biased. There is nothing wrong with bias as long as it is recognized. We all have it, we all see the world from our own unique point of view. I do, however, have trouble hearing from folks who are obviously biased themselves that I am biased. I also have trouble hearing that I am a defender of the patent system status quo. Nothing could be further from the truth, and in fact I have been perhaps the most vocal critic of the patent system and the Patent Office over the last several years. The system is broken, it doesn’t work and needs to be fixed. I just want it to be fixed so it is an improvement and I think fixes that solidify the monopoly/oligopoly of large corporations that do not innovate is a big mistake and completely against the Constitutional directive to foster innovation.

Cheers.

-Gene

Firstly thank you for your civil response. Given my last paragraph was slightly untactful I appreciate your respectful response.

In answering your question about duration… simply changing the duration of patents will not solve the bigger issue. Essentially what is needed is a system that rewards research based on the amount of resources put into the research and therefore patents should represent a varying amount of value. But of course the policy and legislation would be hell to manage this. So in reducing the length of software patents would reduce some of the issues but would only be a band aid solution, and in some cases reduce the potential benefits of a well deserving patent.

As for the mega company ripping off the small company, I agree this is a major concern. In my view it is this and research that is the main driving force behind an effective patent system. But in my experience I have seen that it is often the smaller players that are being excluded from competing even though they can offer a superior service or product, this is often due to the benefits of strategically locking out opponents and thereby achieving more power not just in the patented market but also in related markets.

I feel the patent system use of covering software is clearly outdated as it prevents anyone from building on what has been patented. I touched on this in the orchestra metaphor. This is often due to the way software works. A car that infringes on a patent can easily have the part that infringes removed and replaced with something that serves the same purpose. But in software, that often uses a layered architecture, its not as simple as ripping out the offending part. Also given the numerous ways that software can interact and the enormous amount of software patents out there, it becomes a legal mine field of what you are legally allowed to do.

To be perfectly honest, I am not 100% sure on where to stand on this issue. I have seen patents allow for great innovations in many industries. But in the computing industry I have just seen problem after problem. I have difficulty seeing how an industry with such high amounts of cheap innovation needs software patents and I see both mega companies and small businesses struggle in dealing with patents. It just seems inefficient to me.

I respect your opinion. You set forth the best argument against software patents.

Would you be in favor of software patents (or at least less troubled) if the duration were dramatically less?

If we were to do away with software patents it seems to me that we would essentially be putting a stamp of approval on the mega-companies who have built their business on software patents, thereby making it impossible for smaller businesses who truly innovate to compete. How would you address the disparate size between mega-company who does not innovate and could simply rip off small innovate companies, thereby killing them? In my view software patents are the great equalizer and are necessary for small businesses because they will be destroyed by giant companies that do not innovate but have the means and ability to maintain their monopoly.

-Gene

This is clearly a strawman approach to the issue.

In my experience I view the argument against software patents to be based around the fact that innovation in the ICT space does not require patents due to low barriers of entry and that software patents are used strategically to prevent competition rather than promote R&D.

Also there are arguments relating to how software patents are an inherently abstract entity. Copyright exists to fill this role, but I believe that if software patents were to be extended as the basis for the extensibility of all patents that it would be possible to patent the use of a two violins and a flute and then taking legal action when a orchestra uses three violins and flute.

Also, given your position as an US Patent Attorney, I think you are about as biased as they come, and equal in bias to the Free Software Foundation…. no offense.

“Software Patent” is an oxymoron, but not for the reason you mention:

http://www.jerf.org/writings/communicationEthics/node6.html#SECTION00066000000000000000

Software is speech, I don’t see any difference with any text published in a newspaper. And as such, it is protected by the First Amendment of the US constitution.

BTW, be sure that if Bilski goes to the Supreme Court, I will send them a letter remembering that the First Amendment is the corner stone of American freedom and liberties, and that the Government should not intervene in the censorship of pieces of text, such as software source code.

On the hardware vs software issue, any person skilled in the art will tell you there is no problem identifying what is made in software and what is made in hardware.

See:

http://www.ipwatchdog.com/2009/01/24/the-history-of-software-patents/id=1772/

Enjoy!

-Gene

At first I must admit that I thought you were a crackpot, but it does seem clear to me that you are not at all a crackpot and you do really understand the issues. I will say that I think why folks dismiss you is because you lead off with “what is software”? I suspect that most in the industry just stop listening to you at that point. This is undoubtedly unfair, but there are so many people out there who just don’t want software to be patented and they take ridiculous positions. There is no reasoning with them because they think they know the law, even though they clearly do not.

After reading what you wrote above it is clear you get the situation far better than you probably expect you do. The straight answer is that I don’t have any answer for you, and no attorney can in good faith provide an answer because since the Supreme Court in Gottschalk v. Benson first discussed software the target has continued to move. They loosened the absolute no stance in Diamond v. Diehr, and then over time the Federal Circuit continued to loosen. We all know what software is in life, but since the 1970s in order to protect software with patents attorneys and applicants have had to go through a variety of strange and contrived formats to claim software. That is why I railed on Bilski so much. We had finally gotten to a point in the law where we could actually define software as what it is… a set of instructions that directs a machine to perform specified functionality. Now the Federal Circuit is pushing things under ground again and forcing us to describe software as a machine, which is intellectually dishonest.

So the best answer anyone can give you about what is a software patent is that you have to look at the application and figure out what the point of novelty is. If machine language is used, or means plus function language is used, but the literal claim language would cover what we all know and call software, then the invention is said to related to a computer related process, aka software.

-Gene

“Of course there are software patents and the fact that a preamble of a claim doesn’t use the word “software” doesn’t mean that the claims and the patents are not related to software.”

Dear Gene,

With due respect, I similarly have no idea what you’re talking about and I’m not trying to be facetious here (honestly).

I have yet to see a clear bright line and practical test for what “software” is is, or what “business” is is, or what a “pure” business method is as opposed to an impure business method or a non-business method. Every time I ask, people refuse to answer and simply laugh the question away (sort of like saying, ‘Oh you silly rabbit, of course the Emperor has clothes’ … No he doesn’t. See for example:
http://www.techdirt.com/articles/20090115/0534153420.shtml ) ((BTW does the WordPress comment field allow for HTML code and if so which ones? Is xyz OK? The “Leave Comment” option provides no guidance.))

You inform me that: “You see, software is a process …” Rather than clearing the waters, that muddies them for me. Does it imply that a pure “software” patent must consist of only method claims? Does it mean that State Street was not a software case because the adjudicated claim was a machine (apparatus) claim rather than a method claim? Does it mean that In re Beauregard was not a software case because the disputed claim was for an article of manufacture? Was Diamond v. Diehr a “software” case? What if the timing signal for opening the rubber curing mold comes from an analog circuit or from digital firmware (i.e. an FPGA)? Does such a variation take an accused infringer outside the ambit of Diehr’s software claims (assuming you take the position they are “software” claims as opposed to simply a method claim that recites computation per the the Ahrenius equation plus the step of opening the mold in response as a post-computational act)?

Now of course, I could rant on and on here about muddied waters. But I think first; to have meaningful discussion, we must have a clear definition of what makes something “software” and what makes a patent a “software patent” as opposed to some other kind of patent. Is a patent that claims a programmed FPGA, a software patent? Is a patent that claims a programmably tunable analog circuit, a software patent? I am honestly quite confused when people start pontificating about “software patents”. What exactly are they even talking about?

BTW, I am not oblivious to the implications of Bilski because even before Bilski came down, I was already getting 101 rejections based on the USPTO’s Love memo for cases that were clearly not for “software”. Every method claim is under attack. The USPTO is making arbitrary and capricious requirements for how method claims should be written without providing any basis in statutory law or promulgated administrative rule. The problem goes far deeper and beyond Bilski. The problem goes to unquestioning acquiescence by way too many people in this country to authoritarian dictates (i.e. the USPTO Love memo).

“Also, are you trying to say that since I am an attorney I should not have an opinion and voice that opinion? ” –Of course not. This is America. You can have lot’s of opinions, even self-contradicting ones that use undefined and undefinable words and phrases (i.e. “software patent”).

Cheers.

I really have no idea what you are talking about. I shouldn’t jump into the pit? There are no such thing as software patents? Of course there are software patents and the fact that a preamble of a claim doesn’t use the word “software” doesn’t mean that the claims and the patents are not related to software. Also, are you trying to say that since I am an attorney I should not have an opinion and voice that opinion?

Additionally, Bilski did deal with software. It really ought to have only dealt with a pure business method, but the Federal Circuit went much farther than necessary and certainly issued an opinion related to software. You see, software is a process and the Bilski case says that such processes must be tied to a computer. This is exactly how software was protected prior to State Street, so when the Federal Circuit resurrects this thinking it has tremendous implications for software and software patents. I recommend that you review the genesis of software protection in case law and you will then quite clearly see exactly why Bilski has enormous impact for software patents.