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Is Software Patentable?


Written by Chuck Connell
Posted: June 15, 2009 @ 2:57 pm
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Chuck Connell

Chuck Connell

I am a software engineer who writes about that topic and related areas of computer science. Recently, I published an article titled Software Engineering != Computer Science, which discusses the differences between programming and formal (mathematical) computer science. In response to that article, IPWatchdog.com kindly invited me to comment about some of the controversy surrounding patents for software. I gladly accepted.

My position is that software must be patentable, or 500 years of patent laws make no sense.

First, some well-established background principles:

  • Novel, useful manufacturing processes can be patented. Among many examples are US Patent No. 7,000,318, which relates to a method of designing and manufacturing vehicles, and US Patent No. 5,194,877, which relates to a process for manufacturing thermal ink jet printheads.
  • Novel, useful electronic devices can be patented. Examples include US Patent No. 5,867,795, which relates to a portable electronic device having a transceiver and visual display, and US Patent No. 5,557,579, which relates to a power-up circuit.
  • Just because something is a clever, interesting, original piece of software does not automatically make it patentable. The primary example is software that is a mere expression of a mathematical formula, because mathematical truths are not patentable.

The reason that software must be patentable is that software can be an inseparable part of both manufacturing processes and electronic devices. A patent for such items must crucially include the software components of the invention, or the patent would be incomplete.

Consider two imaginary manufacturing processes, MP1 and MP2. Both produce a new type of automobile which is vastly more reliable than existing cars. These new cars only need minor maintenance every 10 years, and run well for at least 100 years. MP1 achieves this astonishing result partly by using better raw materials, but primarily through improved manufacturing processes. The inventors figured out how to organize workers on an assembly line in a much better way, to create much better cars. MP1 would, of course, be patentable.

MP2 creates the same cars as MP1, using the same materials. But MP2 replaces the people on the assembly line with robots. The robots are controlled by a large, complex software system. The software instructs the robots to inspect the materials, reject parts that are defective, and then assemble a car as good as MP1 creates. If MP1 is patentable, then MP2 must be also, especially if MP2 were invented first.

What would a patent for MP2 cover? It would contain a description of the raw materials, an explanation of how the plant floor is laid out, a list of the robots used, and, crucially, the software instructions to operate the robots correctly. If the owners of MP2 were to sell or license this process, what would they deliver to the buyer? Among other things, the deliverable would contain a printout or computer disk with the robotic software. Without this software, MP2 cannot make a single car and has no monetary value.

Now consider two electronic devices, ED1 and ED2. Assume both are single-chip integrated circuits, that perform identical operations, but their internal constructions are different. ED1 is “hardwired”. It contains thousands of transistors, resistors, and other embedded circuits, arranged to perform the overall operations of the chip. ED2, on the other hand, contains a programmable micro-machine and microcode that implement the same operations as ED1. So ED2 achieves the desired (identical) behavior by software emulation of the hardwired components of ED1.

For those unfamiliar with digital electronics, ED2 might seem hard to believe. In fact, hardware emulation by microcode, in exactly the way I describe, is common today. So if ED1 is potentially patentable, ED2 must be as well, especially if ED2 were invented before ED1. And what would a patent for ED2 cover? The patent would include the operations of ED2, perhaps its physical characteristics, and, of course, its microcode. By any definition, microcode is software.

Finally, consider a third device, ED3. This device is physically identical to ED2, both externally and internally. It is housed in the same integrated circuit chip. It contains the same layers of silicon and germanium, creating the same set of transistors, resistors and other internal components. In other words, ED3 contains the same micro-machine as ED2.

But ED3 performs a very different function than ED2. It takes different inputs and gives different outputs. It performs operations for which no previous integrated circuit was available. It solves a long-standing problem in a novel, non-obvious way. ED3 does this because it contains a new micro-program for its embedded micro-machine. ED3 is the same as ED2, except for its software. And that software makes ED3 a new device, which meets the criteria for patentability.

As mentioned above, new, useful software is not always patentable. But some software must be patentable, or the long history of patents for manufacturing process and electronic devices cannot be sustained as software becomes central to these inventions.

About the Author

Chuck Connell is a software consultant and his writings on software engineering can be found at BeautifulSoftware.com.


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50 comments
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  1. “The reason that software must be patentable is that software can be an inseparable part of both manufacturing processes and electronic devices. A patent for such items must crucially include the software components of the invention, or the patent would be incomplete”

    I don’t agree, and why is somewhat smple; machines that were doing manufacturing without computers and therefore without software years ago that only have been replaced with machines doing the same work, difference being a computer with software is telling them what to do. So, I see it is a question about that chicken and egg again, however machines were first, computers and software were added later on. So at this late date that software along with machines by some adhesion together form an single entity with only an idea that somehow software is a part of the machine though in my opinion they are as different as apples and oranges. I guess I could claim then, that my tapping on top of my tv with a newspaper to turn it on /off that I should be able to patent them as one.

  2. New Here,

    Please try again. Take a deep breadth and put your thoughts into simple sentences. Review your sentences to see if they express a complete thought. You may have something worthwhile to read, but it is not clear what you are saying.

  3. Chuck, I’m pretty far out there with Newman on the radical end of what’s patentable, so I’m in your corner on S/w. But I can see a number of problems with your line of reasoning. Let me point out a couple.

    In your MP1/MP2 example, MP1 and MP2 both produce the same superior car in the same way, but for the fact that MP1 organizes over-paid UAW members and MP2 organizes robots who work for a daily squirt of WD40. Consequently, you argue, if MP1 is patentable, MP2 must be, too.

    Not quite. First, the quality of the car has nothing to do with the patentablity of the processes. You have not indicated that you are patenting the product of the processes (the car), just the processes. Processes don’t have to produce superior products to be patentable. If MP1 and MP2 were better ways to produce my rusty Sentra, or a run-of-the-mill merry-go-round, they would still be patentable subject matter.

    Second, you state: ” If MP1 is patentable, then MP2 must be also, especially if MP2 were invented first.” You make a similar statement in the context of your second example. I believe you’re missing a major point.

    If process B does the same thing as process A, but B does it via S/w, as in your hypothetical, then B is not patentable if B is invented second. A new S/w process that does the same thing as an existing non-S/w process is not patentable just because it’s S/w. That point is very, very clear. If MP2 is invented first, it may or may not be patentable, but whether or not it is patentable has nothing to do with whether a non-S/w process (MP1) is later invented. So I’m taking issue with your “especially if MP2 were invented first” clause.

    Also, I’d be slow to agree with your bold assertion that MP1, which is a new way of organizing all those UAW folks on the assembly line, is patentable. S/w is not the only subject matter that is subject to the Bilski tests. To get past Bilski and a 101 rejection, you would have to assert that the MP1 way of organizing a human assembly line meets at least one of the transformation and machine tests. Doesn’t seem to me like it does. Ironically, if your MP2 S/w organizes robots on the assembly line, then MP2 might meet the machine test and be patentable under Bilski where MP1 is not, even though it does the same thing with people.

    Even more ironic, if MP2 is S/w to organize not robots but humans on the assembly line, I don’t think it would get past Bilski either as there is no machine connection. Maybe the transformation would work for both MP1 and MP2 (is an assembly line “transformed?”), but because Michael was so annoyingly vague as to transformation, we, basically, don’t know what he was talking about there. CAFC screwed us all by waiting until another day for that one, in the mean time, eat cake.

    As far as your microcode example, well, that basic argument is attractive to a lot of people. Those of us who are 101 radicals even argue that every S/w claim includes the inherent element of the hardware that is necessary to run it; consequently, all S/w claims inherently meet the Bilksi machine test. That raises the question, which has been pretty well addressed over on Aaron’s 12:01 blog, as to whether there is a “reverse inherency” — that is, can an inherency argument be used to establish patentablilty, or is inherency limited to the examiners’ inherency findings used to deny patentabiliy.

    Thanks for your thoughts. File an amicus brief!!

  4. The main problems with the software patent debate are that the terms of the debate are fuzzy (what is software? what is a software patent?), many participants have agendas that cloud the debate further, and many participants have limited knowledge of how the patent system is supposed to work and/or actually does work in practice. Many of the issues raised are not specific to software patents at all, but relate to the broad philosophies and policies underpinning the whole notion of “intellectual property”.

    My views: Should all “novel and non-obvious” software be patentable? No, it must satisfy established criteria other than novelty and non-obviousness. Should some software be patentable? Yes, if it satisfies those criteria, for the reasons Chuck has stated. Where should the line be drawn? Well, that’s the real question, isn’t it? The examples Chuck gives are generally patentable anywhere in the world right now. In Europe, software based inventions that make a “technical” contribution in any area of technology are patentable. Computer-implemented “business methods” are not. Europe’s “technical” line is well-established, although there are still areas of controversy around the edges, and the whole question is under review by the Enlarged Board of Apeal of the European Patent Office. In the USA, post State Street, untold thousands of patents have been granted on business-oriented software subject matter that would never have been patentable outside the USA. All of that is now up for review by the Supreme Court in the Bilski case, throwing into question the validity of vast numbers of granted US patents and pending applications.

    The USA urgently needs to clarify its broad policy position on software patents. Only then can it address the other issues with the quality of the examination of software patents by the Patent Office, which is the other main platform for the “anti-” side of the debate.

  5. Noise above Law,

    Thank you for your input, I’m lost about what it is you feel is less then simple , as I do know I may not follow rules as close as I should. I read more then I post here, I don’t understand every point made because I believe I don’t follow the context (Law) in every case, and that has nothing to do with how well or not written, however I do try to read beyond myself to made a best understanding I can.

  6. Hagbard-

    Why is it exactly that the USA needs to clarify its broad policy position? There is really no clarification necessary. Anything made by man under the sun is patentable subject matter. The Federal Circuit ignored both Supreme Court precedent and the US Congress in reaching its Bilski ruling. So all the Supreme Court needs to do is explain to the Federal Circuit they made another mistake and that the law is extremely clear.

    I also think it is a bit over the top to say that the USA needs to get its act together and become more like Europe. As if Europe has it objectively right and the USA is missing the boat. Nothing could be farther from the truth, and in fact it is actually the other way around. Europe urgently needs to rectify its disdain for computer related innovations and stop living in the 19th century in terms of patent policy.

    -Gene

  7. The difficulty behind software patent applications, and of business method patent applications which rely on software or hardware, is in separating the unpatentable purely mental processes (In re Comiskey) from the real world non-mental process application. This is not a problem for mechanical or chemical processes, but it is paramount to allowance of a software patent application. (In re Bilksi). This is why the tangible and concrete result test worked so well until the advent of software.

    Both the specific machine test and the transformation test of In re Bilski are problematic because software could meet with one or both of these tests and yet not produce an output having a non-mental process application. I suspect that the Court will support the specific machine test and the transformation test, but will require that the software or business method have a real world (i.e. tangible) non-mental process application. One example might be a complex product tracking process integrated into an interconnected network. At the outset, this might describe a ‘mere’ package carrier and delivery system, but just try and see how well you do with pure mental process alone. In other words, the key concept will be ‘what happens outside the machine?’

  8. Gee a software consultant thinks software is patentable. Not much of a surprise. C’mon IPWatchdog this post is not what we expect to see.

  9. Ray-

    Come on. You have to know that I have been writing about this for many months, and this is the first of what will become a series. I am working on some broader pieces that will tie things together, and the work of Chuck Connell will be featured prominently.

    I have been asking myself for a while how it is possible that people who are so intelligent fail to understand that software is a process and software provides a set of instructions that causes a machine to operate. Then I read a few of Chuck’s articles and it all started to become clear. I now know why computer scientists and mathematicians refuse to acknowledge what is clearly obvious.

    Much more to come. Thanks for reading.

    -Gene

  10. “software is a process”

    Did I read that right?????

    Whoeeee, I’d sure think twice before arguing that before the PTO or CAFC.

    S/w encodes a process. S/w, or at least source code, may embody a process in a form interpretable by humans. But “is”???

    As a philandering ex-president once famously said — I guess it depends on what your definition of “is” is.

    I would follow the courts and suggest that a method or process is a series of steps and not the representation or encoding of those steps. A cookbook encodes or represents the steps of baking the pudding. The cookbook is not the process of baking the pudding, and the cookbook is not patentable.

  11. Quotidian-

    Yes, you read that right.

    The thing you are missing, or choosing to ignore, is that the process of baking pudding, if new and non-obvious, would be patentable. The words describing the process are not patentable, but the represented process is patentable subject matter. Similarly, software code is patentable, while the actual language it is written in is copyrightable.

    This really isn’t hard if you follow along and realize that processes have been patentable subject matter since 1790 in the US. Whether you make such arguments in court, or write applications this way, doesn’t change the reality of the situation and what is required in order to be intellectually honest. Of course you write applications to succeed under the current laws, and in this space you should write application so that they can cover the invention under past law, current law, and what might become future law. With these applications pending for so long not claiming and describing in all variety of ways ignores the reality that the law in this area is dynamic.

    -Gene

  12. Sorry Gene. . .

    but you are the one who is “missing or choosing to ignore.”

    My point, which you ignore, was and remains: S/w is not a process.

    Nobody has argued that processes have not been patentable since 1790. Where does that sanctimonious non-sequitor come from? The issue is not that processes are or are not patentable, the issue is that you can’t seem to get your mind around how absurd your assertion is that “S/w is a process.”

    Change the issues around all you want, but you cannot possibly defend your statement that “S/w is a process.” The assertion is laughable. BTW, iIf it ain’t a process, and if it ain’t a composition, and if it ain’t a machine, and if it ain’t a manufacture — then guess what >>> it ain’t patentable in the US.

    S/w is a set of instructions telling the CPU what to do, just as the cookbook is a set of instructions telling the cook what to do. S/w instructs the CPU what steps to take. It is the steps taken by the CPU, not the instructions, that is the process.

    Instructions are not a process. Cookbooks are not a process. S/w is not a process. (I’m workin’ overtime here to try and get this point across to you.)

    Go back to your 1790 irrelevancy if you want to, but that still won’t turn S/w into a process. A more useful approach would be to show us some BPAI, CAFC, or USSCt authority to back up your assertion that “S/w is a process.” Put up or shut up, as you yourself have demanded in the recent past.

  13. Dude-

    I am not ignoring you, you are just wrong. Why you cannot understand something as simple as software being a process is beyond me. Obviously you are choosing to live in a fictitious place and are refusing to acknowledge the difference between prose and process. How you can at all claim to be an attorney representing creative individuals without such basic knowledge regarding the difference between copyrights and patents is beyond me, and quite frankly I give up. God help your clients!

    -Gene

  14. Gene and Dude,

    OK, I’ll get in the middle. You two may be debating some legal language that is beyond me, but from my point of view….

    – Printed source code is not literally a process; it is ink on a piece of paper.
    – Compiled machine code software is not literally a process; it is a set of memory states within a computer.
    – In both of these cases though, the software is “specifying” or “describing” or “encoding” a process.
    – The process being specified is the sequence of instructions the CPU should take to perform a useful action.

    Does that distinction help?

    Chuck

  15. Chuck-

    You and I are saying the same thing here. For reasons I do not fully understand, in this chain and others Dude seems to suggest that because a cookbook cannot be patented that means that software cannot be patented. The source code is copyrightable, just like a cookbook is copyrightable. The process one follows to cook, for example the baking of a cake, is a process that can be patented, assuming it is new and nonobvious. Similarly, the directions provided to the computer thanks the the compiling is also patentable because it is directing the machine to take action, and therefore under the law is quite clearly a patentable process.

    How can one not recognize that the written code is translated into machine code and this causes the computer to perform specified functions? I also don’t understand why people question the usefulness of a computer that has no software. A computer without software is useful as a paper weight, not as a computer.

    More to come next week on your article Chuck, as well as some of your other writings, which I think really drive home the points and explain the biases of interested parties. Everyone has biases, so that is not a cut, but to understand where the “software is not a process” folks come from we need to really explore their beliefs and biases.

    -Gene

  16. The arguments against software patents have a fundamental flaw. As any electrical engineer knows, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits. For more information on patents and innovation see http://www.hallingblog.com.

  17. If you claim that software can and should be patentable you have not understood the problem.

    I have also hare to imagine that you are really computer scientist. People promoting software patents are mostly patent lawyers, but computer scientists, no.

    I am 53, I was working 1981 to 1992 at Asea Brown Boveri in Sweden. I have a Master of Science in Engineering Physics and Computer Science. In the late 80-ies we were developing AI-methods and something I came up with my boss considered that maybe it could be patentable. Well sure, I said. It was first years after that I understood why software can not and should not be patentable. During the 90-ies I was doing my research, and got a PhD in computer science in 2003. I guarantee you, you won’t many computer scientists that can approve software patents.

    I think you should read up on software patents and why they are neither efficient, nor desireable. I can hint you to some place like
    http://ffii.org or http://nosoftwarepatents.org

    Read up on these, get your arguments, then we can discuss. I won’t accept a world which accept software patents. You can find my mail through this site I guess, or through that website ref, there I also have some entry you can read about patents.

    OK, we can see it like this, it is of course possible that someone can be pro software patents, despite the problems. There are people that want to live in a world which foster and encouraging innovation, and there are people that want to live in Status Quo. No change, no technical developmen. Patents in general are bad and stifles innovation in most cases, but for software they are not only bad, they are catastrophic. A patent system that approves software patents is a dysfunctional one, and in case software patents can’t be stopped, then we have to abolish the patent system.

  18. Roland-

    Your comment is exceptionally arrogant. So anyone who thinks software should be patentable doesn’t understand? Really?

    In terms of whether Chuck is a computer scientist or not, he is actually a software engineer. In my experience only mathematicians and computer scientists fail to understand software, what it is, what it does and that is should be patentable subject matter. Additionally, only mathematicians and computer scientists fail to accept the truth that processes have been patentable in the US since 1790, and a software provides the instructions for a machine to work, and in that sense defines a process carried out by a machine. If a robot were created that could build a product on its own no one would question the patenting of the robot, but what makes that robot work? Software? Without the software the robot is just a bundle of pieces that cannot and will not function. Not recognizing that software is and should be patentable is really to put your head in the sand.

    If you won’t accept a world with software patents I am afraid you are going to need to find another planet to live on.

    As for patent stifling innovation, I think you are the one who needs to brush up on history.

    -Gene

  19. @Quinn
    Your comment was extraordinary arrogant, as you would even not consider the possibility that I’m right,
    but we may have a discrepancy in understanding each other.

    I say: Software is not patentable.

    You say: Think about a machine, being controlled by software.

    I say: Fine a machine is not software. As soon as that machine does something that have to deal with physical constraints then you may need some special way of moving that machine, of course some part of that machine is software. What you are patenting then is the way of performing something with a machine, this is a process which I would consider patentable.

    The software controlling that machine should of course not be patentable. The software is not the machine.

    The same piece of software can certainly be used in other places, for other purposes, so you can not say that the software is patentable. The software only implements some mathematical transformations.

    This kind of mechanical things/processes are perfectly patentable both in US AND Europe.

    The problems begin when people starts trying to patent things that are not parts of a physical process and the only physical effects may be some twinkle on a screen, or some information leaving a server . Then you have the fishy “Computer implemented inventions” that they tried to get through here in Europe 2005. Fortunately they failed.

    Then about patents stifling innovation, of course they do. If patents are narrow, then no problem, then they can be invented around, but software patents tends to incredible broad, so instead of patenting a specific process you end up with a patent covering the whole idea, which is completely unacceptable as you can no longer invent around it.

    Then regarding patents, on rather simple constructs, where the product is used as is. Then there is no problem. The problem is when we start dealing with “incremental innovation” that is, you make one piece/module, this piece/module you combine with another piece/module and so on. This is typical for software, but is also typical for many material products today, as new designs are just combinations of previous designs. Then if someone has patented certain of these building blocks then you are blocked. You can not go that way, and innovation has stifled.

    So, In case you are just speaking about patenting your machine, for instance a robot, begin controlled by software, no problems. It is a narrow application that does not stop others from innovating other types of robots. Otherwise, if you are trying to patent things which I can make by just writing software, then I will defend my freedom as you are attacking me. I will defend myself without limits. I won’t let you take my freedom from me. No way!

    Also remember the huge importance of open source software, I have mostly been using open source sofwares the last 20 years, and software patents is completely incompatible with open source software, unless you make certain rules that free software/open source software is completely immune against software patents. That is of course an option.

    If you still claim that software is patentable, then we need to discuss further, but lets see what you say so far. Best Regards/Roland

    PS. On my blog I have one entry from early February, if you translate it to English (I have buttons for that) which would get the titlte “Product patents, rottening fruit!” there I discuss a little about my view upon product patents (which I’m generally against, both in software and hardware). The problem with products is of course that the tend to become more and more software like. It is no fight with physical constraints and such, and thus yuu have a pure software problem with incremental innovation, where a patent on any building block, stifles further innovation.

  20. Roland-

    You say: “software patents is completely incompatible with open source software”

    I think you are completely misinformed. If that is true why do open source advocates and companies seek patents? There are many patents on open source software. Perhaps you were unaware of this fact.

    You show your true leanings when you write: “if you are trying to patent things which I can make by just writing software, then I will defend my freedom as you are attacking me. I will defend myself without limits. I won’t let you take my freedom from me.”

    What you are really saying is that you want to infringe and to hell with anyone who says you cannot. Go ahead and defend your freedom if you want, but whether you are willing to accept the truth or not, software is patentable, should be patentable and there is no logical or rational basis to say it should not be patentable.

    You also say: “If you still claim that software is patentable”

    This is just a fact, as pure and simple as the sun rising in the east. Software is patentable, and the fact that you refuse to acknowledge this legal truth shows you are not objective and/or misinformed.

    -Gene

  21. Quinn!
    Sorry, but I would say that you are living in a lie. First you don’t seem to know much about software, if you did, you wouldn’t claim that software is patentable. You have utilized that guy Chuck Connel here, to speak up for software patents. However, Chuck Connel says nothing more than I did in my previous statements.Chuck is smart, he knows software but you don’t.

    If we check the first two patents he is referring to 7,000,318 and 5,194,877 they are production methods. If you would have checked my site, which I referred to as “Product patents, rottening fruit”, which you probably haven’t done, you would see that I, who says no to all product patents, I actually say yes to production method patents, and then I care less of which type they are.

    The other two examples are exactly like those I mentioned previously, where the software is part of a novel apparatus. Then the apparatus may be patentable, but not the software.

    Despite this you claim that software is patentable. First, I don’t care whether you consider software patentable or not, because patenting software is just wrong, but this is an argument you certainly won’t listen to.

    There are certain people in this world, who doesn’t care whether patenting software is bad for the society, stifling innovation or not. Those are (in my view the evil) proponents for software patents. These people you won’t find within the computer science area, but you find them where the lawyers reside. I guess even you, as being an attorney, would admit that law persons should not decide what laws we should have. But in the matter of software patents, patent lawyers are the worst in proposing software patents. The reason for this is because it serves their own self interests. They make a lot of money on bad patents and to help people patent certain things despite they are beneficial for the society or not.

    By the way, you certainly know Bill Gates, he and Microsoft were among those who were the worst lobbyists to the Congress which finally allowed software patents in the 80-ies. Microsofts progress was done completely without the help of patents. In 1991, he stated that
    “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”
    http://quotes.nobosh.com/if-people-had-understood-how-patents-would-be-granted-when-most-of/q185/
    Here is a NYTimes article “A patent lie” from 2007 which you certainly have read also: http://www.nytimes.com/2007/06/09/opinion/09lee.html

    You have certainly also heard about Bill Gates mad attack on the Danish government before when we had the voting about softpatents in EU 2005 (MS has tried to deny this though…)
    http://www.p2pnet.net/story/3901
    If you like Monty Python humor, then a slashdot reader provided a “dead patent law sketch”
    < ahref="http://yro.slashdot.org/comments.pl?sid=139523&cid=11676712" target="_blank">http://yro.slashdot.org/comments.pl?sid=139523&cid=11676712

    Regarding that you questioning whether software patents would be incompatible with open source software, you claim that some of their advocates do patent things within the frame of open source software. True, actors like Sun and IBM do that. The reason they do that is to protect the software community, as e.g. expressed here by MySQL, now Sun.
    http://www.mysql.com/about/legal/patents.html
    “In general, Sun uses its patent portfolio to defend communities and indemnify customers. Check back here for further updates.”
    IBM has a more conservative view, but they have at least donated 500 patents to open source 2005, and express their view here
    “”The Armonk, N.Y., company said it wants the 500 patents to form a kind of “patent commons,” which would include other intellectual property (IP) owners willing to release their patents to open source. Officials said that while IP ownership is essential, technical innovation depends on shared knowledge, standards and collaborative innovation.””
    http://www.internetnews.com/dev-news/article.php/3457381

    But, the only reason for these patents is because we have this dysfunctional software patent system. I think you can certainly agree to the incompatibility issue that with open source software you are not charging anything for the actual software. The software can be used as you wish. To further develop, to spread. As there is no charge in “selling” licenses of open source, there can be no patent royalties regarding open source software. Here is, by the way, what the founder himself, of Free Software Foundation, says about Microsoft and software patents
    http://news.cnet.com/Bill-Gates-and-other-communists/2010-1071_3-5576230.html?part=rss&tag=5575731&subj=news.1071.20

    Regarding software patents I had myself hot debates with a patent buster Gregory Aharonian in SF around 2000. I wonder what happened to him, I had asked him if he could recommend me to patent a method which could take over and gain control over the whole US industry, and he did recommend me to do that (it’s an AI production method). I looked him up recently and it seems as he has gone a little beyond reasable now, as he is even proposing to “Patent art and entertainment”
    http://www.nolo.com/product.cfm/ObjectID/048F5EA5-79E7-43C0-93AFDBFF1CDC9CE0/310/

    By the way, the term IP is no good, as you can not own ideas, “Intellectual Property” is a bad term, “Immaterial Rights” is better.

    If you want more evidence that open source is incompatible with software patents, then tell me. Otherwise, a guy in your position could certainly affect things so that open source software becomes untouchable by patent law. Open source licensing is based upon copyright laws, and these should be enough. By the way, you have certainly heard about the amusing case of Matt Katz and JMRI which I write about on my blogg here (autotranslated to English)
    http://translate.google.com/translate?hl=en&ie=UTF-8&sl=sv&tl=en&u=http://csblogg.idg.se/bloggar/hardcoreopensource/entry.jsp%3Fmessid%3D606

    Of course the correct thing would have been to invalidate Katzer’s patents, but the end result proving that Copyright is stronger that patents is great, especially for open source software.

    Regarding your income I guess you would admit that it wouldn’t be affected if you would propose that open source software would be untouchable by patent law, as I assume most of your customer are within the close proprietary software sector. By proposing this you would do both yourself and us a favour. People from the open source community prefer to publish their things in a way so they can not be patented.

    Best regards/Roland

    PS. By the way, a magazine had asked the question earlier
    “Is there law in heaven?”
    http://www.livingcitymagazine.com/content/2009/06/there-law-heaven
    and concluded that they were not necessary, but added
    “it is clear that lawyers often top the list of those most suspect for not fostering a culture of communion.
    This may be because lawyers are often in a position to manipulate relationships of power for their own selfish interests, or those of their clients.”

    I can assure you, if you had another job, like programmer in the OSS community, or any other job deeply technically related to software, then you would not promote software patents.

  22. Roland-

    My goodness you are naive. If you think IBM and Sun are getting patents for altruistic motives there is nothing anyone can say to help you see the light.

    -Gene

  23. Quinn,
    your comment was brief, but I can at least I see your comment as a consent that software patents can be harmful.

    About altruism, it was you using that word, not me. If you consider protecting open source and free software to be about altruism you have got the wrong idea.

    Think Win-Win!

    If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.
    — George Bernard Shaw

    Both Sun and IBM are investing a lot in open source software, and as long as we have software patents, there is a hazard that open source software can be under attack. Microsoft did attack TomTom (implicitly Linux) this last spring for instance.

    Then, when you have a Win-Win situation between the creators, then you get a Win situation for the society, there you have a triple Win-Win-Win situation.

    The original idea behind patents was also to create a Win-Win situation, but here one Winner was the one getting a time limited monopoly and the other winner was the society, when the patent assured disclosure.

    With patents today, especially within open source software patents they create
    NoWin-NoWin situations, it is more like a cold war.

    Someone who is not able to release their software because someone has a patent that cover that software, implies that others can not utilize that software and not build upon that software, which implies no gain for the society either.

    Therefore software patents create a Status Quo, the Win for the society will never come. NoWin-NoWin-Loss, instead of Win-Win-Win
    It is very simple, actually.

    /Roland

  24. Roland-

    You are delusional. I gave up because there is no point talking to someone who simply ignores reality, refuses to listen to rational arguments and has made their up their mind to stay in the dark.

    Software patents are not harmful, patents do not stifle innovation and if you are not willing to accept that reality I have no need to attempt to further enlighten you. Stay in the dark for all I care. I don’t have time to converse with people who clearly don’t get it and have no interest in getting it.

    -Gene

  25. Gene,
    I actually had some hope about you. Anyway, I hope you have read my arguments, at least they should make you start thinking. To be locked in into a situation where you can not formally admit me to be right, must be frustrating.

    And, never ever use reality as a reference! That is doomed to fail.
    Do you support the censorship in China, it’s a reality!
    Do you consider it OK that people murder each other, it’s a reality!
    Do you consider it OK that one compnay, Microsoft has control over 90% of personal computer software, it’s a reality!
    Do you consider it OK that trivial and obvious software methods can be patented, it’s a reality!
    Do you consider it OK that terrorists killed thousands of people in NY 2001, it’s a reality.
    Do you consider it OK that patent trolls are dealing with patents as assets, it’s a reality!
    and so on… reality is the worst reference you can use, as long as the reality is insane.

    And, to claim that software patents would not be harmful and stifle innovation, despite I have clearly explained in very simple words, why they do this, make me wonder about your health. Can you find any sane person that can explain to me and guarantee that software patents are not harmful?

    Here are 544 web pages explaning why they are harmful:
    http://www.google.com/search?hl=en&safe=off&client=opera&rls=en&hs=sDi&q=%22software+patents+are+harmful%22&btnG=Search&aq=f&oq=&aqi=

    If I add a “not” there, you get one page only
    http://www.google.com/search?hl=en&safe=off&client=opera&rls=en&hs=Zu2&q=%22software+patents+are+not+harmful%22&btnG=Search&aq=f&oq=&aqi=

    Here I searched a little bit more general, software patents the problem
    giving 2.2 million references.
    http://www.google.com/search?hl=en&safe=off&client=opera&rls=en&hs=waN&q=software+patents+the+problem&aq=f&oq=&aqi=

    Now, imagine that your son or your daughter, become entrepreneurs, they start developing free software for video streaming, and they provide video streaming services. Then they are hit by an ugly patent troll like Acacia, sending them a letters like this
    http://www.chillingeffects.org/ecom/notice.cgi?NoticeID=546:
    your children can do nothing but go bankrupt, but maybe you don’t care.

    I took Acacia as an example as it is probably the most famous example of a patent troll, whose evil tactic is to sue other companies, despite they neither have any R&D nor sale within video streaming. They are just abusing the system.
    http://www.forbes.com/2003/04/02/cz_sl_0402porn.html
    The “patent portfolio” of Acacia is just disgusting
    http://acaciatechnologies.com/patentportfolio.htm#Soft

    After the Patent troll Acacia, which due to business or software methods which are treated as assets has caused your childrens business to go bankrupt, are you still willing to support software patents?

    It would also be interesting to hear if you defend this crazy idea to deal with patents as assets, which is the basis for the patent trolls business?

    Probably you don’t care, as you don’t care about how software patents harm either.

    By the way, according to US laws, is it OK to say to people that they are delusional, as you did? I would say that it for me seems like an offending insult, in violation of my rights to free speech, according article 19 of the human rights. In a similar way as software patents violate my freedom of expression according the First Amendment of the US Constitution.

    With software patents, I am not free to create and express myself in a way which is protected by the First Amendment.

  26. Roland-

    If you think it is illegal for me to say you are delusional then sue me. That would be so much fun. Apparently you have tremendously broad First Amendment rights, the right to say whatever you want no matter how wrong, and the right to infringe. For the rest of us, we apparently have no First Amendment rights to state the obvious, which is you are delusional. If you do sue me I will, of course, use a truth defense.

    If you think patents violate your freedom of expression and infringe upon Constitutional rights then by all means sue me, sue the federal government for having patent laws and you might as well sue the descendants of Thomas Jefferson, after all he is the one who wrote the original Patent Act and was the first patent examiner in the US. I think you might just win. Sounds like a great case to me!

    I am not wasting any more time with you or on this. I am also not going to publish any more comments that have a list of links directing people elsewhere away from my site.

    -Gene

  27. Gene,
    it was a pity that we couldn’t have a real discussion, as you never met my arguments, just claiming they were wrong, which is not argumentation, but.. as I wrote in my first statement, you were no computer scientist, as I also suspected, you made me right, It is most only patent lawyers that promote software patents, and they can’t motivate it with any real arguments.

  28. Roland-

    You really make me laugh. I never met your arguments? Really. Well please excuse me for speaking over your head. How rude of me.

    The truth is you are clueless and continue to lie and misrepresent. My arguments are all over the site, and you choose to ignore them because if you read them and considered them you would have to agree with them, and that is just not in your DNA.

    But if you want to educate yourself, have at it. Here are my software articles and anyone who reads them with an open mind will know that I am correct, you are wrong, software IS patentable and should remain patentable.

    http://www.ipwatchdog.com/category/software/

    -Gene

  29. Gene-

    “Software” is two four letter words concatenated together. “Software” is a sound pattern that some people utter and others hear.

    Exactly what is in the head of the speaker, writer, listener or reader when the “software” pattern is used, is anyone’s guess. For you it appears to equate with process. For others it appears to equate with math. Exactly why, I can’t explain. But it sure seems to suck up a great deal of your time and energy trying to explain to Roland or others why the existential essence behind the letter/sound pattern should be patentable.

  30. Step back-

    Perhaps you are correct. Too bad for those that think software is math, because it is not.

    I am working on an article that will once and for all demonstrate to those who are objective that software is not math. If software is math it should be able to be reduced, solved and/or proved. I will post a portion of code and let the haters try and reduce, solve and/or prove. Then if I get any results, which we all know I won’t because what they say cannot be done, I will plug it into the overall program and see what happens. My guess is that it won’t work, because computers and other machines need instructions, not mathematical equations, in order to operate.

    In terms of taking too much time, not really. It gives me all kinds of material for new articles. It is also enormously amusing to hear them say I never provide any proof. Funny like a Monty Python or Saturday Night Live sketch. All they do is quote other thinkers, never providing any evidence themselves. That is truly the liberal way to argue. Present an opinion of another, which you really don’t understand but like, then when pressed start calling names, saying “if you only understood we could have a real discussion,” or they simply disappear or change the subject. I rather enjoy proving people don’t know what they are talking about. After spending so many years biting my tongue and trying to make it as a law professor in various liberal insane asylums it is refreshing to be able to tell the truth, speak my mind and prove I am right without having to worry about losing my job. On top of that, the more I write about software being patentable and folks being naive, the more clients I get because there are a whole lot of serious entrepreneurs who are tired of being told by lawyers their stuff cannot be patented (which is simply not true) and tired of those who profess to be “in the know” telling them that what they are doing is trivial, and nothing more than math.

    Funny how when you cannot cut it as an engineer in college you either go into computer science or mathematics. And those folks have the nerve to tell me and other engineers that we don’t understand. Great material provided for my speaking engagements. It seems so many engineers and patent attorneys are fed up as well!

    -Gene

    -Gene

  31. “As mentioned above, new, useful software is not always patentable. But some software must be patentable, or the long history of patents for manufacturing process and electronic devices cannot be sustained as software becomes central to these inventions.”

    Indeed, this is accurate. But the conclusion that the long history of patenting must be sustained is not accurate.

    Let’s consider once again what a patent really is. Forget the marketing about rewarding innovation, or rewarding investment. These are easily disproven by the massive innovation that happens with no such rewards. Indeed, patents are bad for innovation, bad for disclosure, bad for competition.

    What they are good for, and this is their only saving grace apart from making some people very rich at the general expense of society, is to get documentation about the state of the art.

    Patents on the steam engine held back the industrial revolution by 20 years. Patents on aircraft almost made it impossible for the USA to build planes in WW1. But thanks to these patents we know exactly how to build a steam engine, a plane, and millions of other inventions.

    Now consider patents on software, and ask yourself if the documentation is worth the 20 year monopoly. This is the only question that makes sense. Is the original contract still valid? Is the cost to society still worth it? Are those pieces of paper, the patents, worth 20 years of exclusive ownership to an algorithm, a business method, an idea?

    It’s a question that can be easily answered. In many branches of engineering, patents are where people go to learn. In software, they download and study code.

  32. Pieter-

    Your arguments are typical of one who is anti-patent and thinks that patents stifle innovation. There is absolutely no proof that has ever happened. Those who let patents get in the way of the advancement of technology and innovation are lazy, copyists and would never have created anything useful on their own. You can claim all you want that patents on the steam engine held back the industrial revolution, but that is simply incorrect. It is also factually incorrect that patents on airplanes “almost made it impossible for the USA to build planes in WW1.” Obviously you have read that somewhere and didn’t care enough to do any research, but rather chose to accept something that is provably wrong. Patents are granted by the US government and the US government is not bound by the exclusivity they grant. So you are badly misinformed and by choosing to accept provably inaccurate facts as true you have let others with an agenda mislead you.

    -Gene

  33. Some comments on a few points of the article and the comments themselves:

    – Although being a long standing tradition is usually (although not always) a sign that the tradition has some merit (after all, it withstood the test of time), one should not try to preserve tradition for tradition’s sake. Ideas change, priorities get reassigned, society evolves. Else you could fall into defending propositions that have become untenable. Examples through history include slavery, woman submission, racial discrimination, etc, each one of those anchored on over a millenia of tradition.

    – One of the cornerstones of democracy is that, as long as one stay within the law, he is endowed to strive against anything he doesn’t like in the government and the laws such government enforces. Which in the end means everyone has an inherent right to ask for software patents to be allowed or prohibited, no matter their current legal standing. After all, law is said to be the domain of the “should be”.

    – Saying that for something to be mathematics it needs to be able to be reduced, solved and/or proved is a quite narrow view of mathematics, taking it to mean basically arithmetic. Mathematics encompasses much more. Besides, any digital electronic circuit can be represented as a set of boolean equations, which means that any program can be reduced to said boolean equations plus a set of input data for those equations.

    – Software, in my opinion, is so problematic to patent law because it can always be directly transformed into, at least, a mental process, a set of mathematical equations and an electronic circuit, each of those treated differently in patent law. Software, in essence, is not only math, but also a kind of mental process so simple it can be followed even by someone or something without any hint of common sense or discerning.

  34. Fabio-

    So what you are saying is that electronic circuits cannot be patented because they are math, right? That is absurd, not the law and not reality.

    The fact that you think software is a mental process speaks volumes. Just FYI… software runs on a computer, not the brain of an individual.

    -Gene

  35. Wondering why people that are not programmer, and don’t understand what programming is, keep write about how good are software patents!
    SW patents DESTROY software development except for “big guys” that can sue everyone and do cross-licensing among them. This produces MONOPOLIES, not innovation.
    Claiming the need of a monopolistic right upon broad ideas, while copyright is more than adequate, is ridiculous.
    I will not repeat here the reasons why patents upon ideas are bad, there are plenty of material in internet, and we know that who is pro sw patents or does not understand what sofware is, or has big selfish interests in damaging society and innovation. Don’t know which side the author of this article is, maybe both, but does not matter :)

  36. Markit-

    You will not repeat the reasons why patents are bad because you simply don’t know and will never understand. I find it incredibly amusing that folks who dislike patents always say “I won’t go over why they are bad…” That is simply because you are incapable of original thought, can only cite others and have no more than a first level understanding of the issues.

    Patents do not harm innovation, and the fact that you think they do show just how naive you are with respect to business matters.

    Thanks for reading IPWatchdog.com though!

    -Gene

  37. Gene
    I don’t tell that patents are bad, but SOFTWARE patents are. Do you believe that patents are good? So patent everything (art, music, architecture, math, etc.), so everything will improve a lot, in your opinion.
    The fact that a restriction could do something positive in one matter, don’t means it does in another. For software, Copyright is the right “protection” that lets me, that I have plenty of new and innovative ideas, to develop software that push innovation.
    Only the fact that you know nothing about software justifies your defence on patents.
    “we will bit you with an hammer, since we know is very good for you”
    “no, thanks, I know is not”
    “oh, you don’t understand hammers, and don’t explain here why you don’t want be bitten because you are incapable of original thought, but we know is good for you, is so good for nails”

  38. Markit-

    Art, music and math cannot be patented. By even asserting that it is clear you do not understand the patent laws and what they are intended to accomplish.

    Software is entitled to patent and copyright protection. Both protect different things. Copyright protection alone for software is completely useless to stop anything other than cutting and pasting. I know many computer science folks and mathematicians would like that so they can copy without penalty. Copying the work of another does not advance science or technology. Patent law is intended to advance science and technology and force work arounds. The fact that many in this field are too lazy to work around and innovate does not mean patent should not exist. It simply means that those folks are lazy. On top of that they refuse to educate themselves about patents. If they did they would realize that reading the specification is not enough and would not give up so easily. So many times folks that hate software patents say they are estopped from doing something they are clearly not estopped from doing. That is a you problem, not a patent problem

    Your assertion that I know nothing about software is laughable, and any objective observer knows that. Stale old trick to not be able to keep up logically with an intelligent conversation, so throw insults.

    Go ahead and develop software without getting your own patent. Then when others who have patents get a patent and come and shut you down and cost you your business you will only have yourself to blame.

    _Gene

  39. Gene,

    Suppose that someone designs “algorithm 1″ that (for instance) sorts an array of data faster than any other method at the time, but he doesn’t publish the method. He gets a software patent for that algorithm.

    Suppose someone else also designs another “algorithm 2″ that (for instance) sorts an array of data faster than “algorithm 1″, but she doesn’t publish that method either. She gets a software patent for that algorithm.

    How would we ever tell if someone was infringing on the other?

    Implementing either algorithm with just a difference in the compilers/assemblers used would muddy the waters for sure.

  40. Pat-

    You ask an excellent question. Determining when there is infringement is extremely difficult. Sometimes impossible. The patent owner has to remain vigilant to see if others are infringing. In the software area there are likely all kinds of ongoing infringements that are not known, and therefore not acted on. People learn of infringement in strange ways sometimes.

    The reason for small businesses to get software patents is that when another company, typically a larger company, says you are infringing you will have patent assets that you can claim are likewise being infringed. When you do not have a patent you are a target without any ability to fight back. Software patents should be considered to be a form of insurance, and a very cheap form of insurance at that for companies that build on their own proprietary software.

    -Gene

  41. Bias declaration: My bias is towards the development of the field as a whole, and how the field can benefit everybody, rather than the income of a particular client/customer/company/rich_guy/myself/whoever.

    >you can claim are likewise being infringed

    A.k.a. Mutually Assured Destruction.

    I agree it’s a good idea to get some nukes of your own for the sake of protecting yourself, as long as the environment is one of MADmen, but you’re also implying that everyone having nukes this powerful is a good thing. (and saying it’s a good thing in other posts and comments.)

    I beg to differ.
    Seeing how few people want the cold war back, I suspect (but have indeed not proven) most will consider this a bad thing.

    Imagine this purely hypothetical deal:
    A company could get automatic free license to all patents, provided they
    – Gave the ‘patent-qualifying” description (the “can reproduce from” text) of all products
    – All “patents” taken by them (or from related activity) had to be free for all to use.
    – Did not just copy what others have patented. (Let’s assume the lawyers found a wording that fullfills the intent.)

    If the above hypotethical was real, which would recommend? For a company to get its own patents for MAD protection, or use the above deal? Why?
    (The why part is important here, since this would affect demand for the profession of *ahem* certain people on ipwatchdog.)

    Part of the problem seems to be that it doesn’t matter all that much if you are infringing or not, in many cases the legal costs would exceed what the supposed infringer would be able to cover anyway.

    >You can claim all you want that patents on the steam engine held back the industrial revolution, but that is simply incorrect.

    I would like you to tell me where my source for the following data is incorrect:

    The “he” below refers to James Watt, who invented a crucial improvement to the steam engine. In some cases “they” may be more accurate, referring to Watt and his partner Boulton.

    In short it seems to say (this was all about the UK)
    -He diverted significant resources to wielding the patent against others.
    -He couldn’t work around a definiciency in his product because the solution was patented. He rather developed and used a solution which was suboptimal instead. (At least until said patent expired.)
    -His business went better after his patent expired. (“Boulton and Watt for many years afterwards kept up their price and had increased orders”)
    -Many inventions made until then were shelved until they could actually use it.
    -The steam engine got its central place in the industrial revolution only after the patent expired.

    Before Watt (1776) 510 engines about 5,000 horsepower.
    Patent expiration (1800) 2,250 engines (only 449 Watt engines) total horsepower 35,000 at best.
    1815 estimated nearly 100,000 horsepower
    1830 horsepower reached 160,000

    “After the expiration of the patents in 1800, not only was there an explosion in the production of engines, but steam power finally came into its own as the driving force of the industrial revolution. In the next 30 years steam engines were modified and improved, and such crucial innovations as the steam train, the steamboat and the steam jenny all came into wide usage.”

    Source: Against intellectual monopoly (freely available at http://www.dklevine.com/general/intellectual/against.htm )

    A personal, untested, theory of mine is that (pure) software may be a field which needs to mature a lot more before it (the field) can actually benefit from patents. Then again, mature fields may tend to suffer from gridlock economy. I’m probably missing something there.

  42. IMO ultimately “software” breaks down to be a binary number that a CPU can interpret as instructions that it executes.

    So IMO, you can patent a machine that interprets “1” as an instruction, but not “1” itself as this is Math.

  43. Tom-

    You are 100% right, and you have made the case for software being patentable without even knowing it. Because the CPU interprets the instructions and executes that means software is a method. Methods have been patentable since 1790 and they are simply a set of instructions to accomplish a task.

    The number “1” is not math. It is a number.

    -Gene

  44. You forgot a tiny aspect of patent law: It forces me to do research *prior* to writing software, checking whether my piece of code would violate some patent. Now software is extremely generic, hence unretrievable. Try to find the MP3 patent on the USPTO search service: You know that there is a patent, nonetheless how are you supposed to find it?

    So what does this come down to? Big companies file thousands of patents and statistically it will be extremely likely that your product will violate at least one of them. This is just a modern form of piracy.

  45. BobI-

    Sorry that you are forced to engage in appropriate business practices. You are right. I would be much easier if you could ignore the rights of others and do whatever you want without consequences.

    Yes, big companies file thousands of patents, but smart small businesses file patents as well. Ever wonder why big tech wants to make it harder to get patents? They are sick of independent inventors and small businesses patenting things that they copy themselves.

    Do what you want, but don’t be surprised when you are on the wrong end of a lawsuit simply because you were too lazy to research.

    -Gene

  46. 500 years of patent laws don’t make sense, just as your bill of rights may not apply today in certain aspects. After 500 years of patent laws, I’m sure that since then there are loop holes and ways to make innovation unfair to a beginner in a capitalistic corporate world. Take for example Verizon vs. Vonage case. Verzion is suing Vonage for over $100 million because Vonage is violating Verzion’s patent with VOIP, which was never originally owned by Verizon in the first place. I believe big money making giants like these companies should have a limit on the amount of patents you can buy, or the price of a patent maintenance fees should increase per patent bought. If Verizon wipes out Vonage, consumers will have to deal with a monopoly and be forced to pay 1 price. Company’s have gone too far with patent buying frenzies. So in the argument that patents help innovation or hurt it, there are too many cases where too many patents are infringing on beginning engineer rights.

  47. It sure gets to be a sticky situation. The whole deal with Java going on right now is a good example. It was supposed to be open source but now Oracle wants it patented and is trying to sue Google for ripping it off for their Android phone software.

  48. Bill Gates didn’t have a patent on one of the first pieces of software he ever wrote and that indirectly, or directly, sparked his ultimate success. It doesn’t work this way in every situation, but does software need to be patented every time?

  49. The question is not whether or not some term can be inserted into the rule of law that makes patenting software possible; but instead the question is whether any law should be allowed that restrains development by others or that creates in one a monopoly.

    The answer is seen clearly in the open Internet. It developed as a free thing and it advanced a technology based on a standard, not on a law, that encouraged everyone to participate. Out of it has come a world wide media, but now the patents are about to centralize the media and impose commercial gates and bring it to a halt.

  50. Fudmier-

    You say: “instead the question is whether any law should be allowed that restrains development by others or that creates in one a monopoly.”

    First, patents are not monopolies.

    Second, that decision has long since been made. You should read the U.S. Constitution.

    -Gene