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.

Anonymous comments that are confrontational and use obviously fictitious e-mail addresses, like anon@yahoo.com, are not going to get approved.

I do not require folks to register as users before they comment, but if you are not willing to use a real name or a real e-mail address your comment needs to be squeeky clean and not at all confrontational. Those are my rules and anyone that has a problem with it please keep your thoughts to yourself. I am growing tired of being told I don’t understand “freedom of expression.” I enjoy those rights as well, and I will not tolerate factually inaccurate, legally inaccurate, abusive, vulgar or confrontational posts. Open debate and disagreement is fine, but IPWatchdog.com has always been about conveying accurate information, and I will not tolerate junior high level attacks on those who are meaningfully contributing to a debate.

I have never revealed a source, never revealed an e-mail address and I am not going to allow IPWatchdog to be taken over by those with an agenda who are unwilling to let themselves be known to at least me, the administrator.

-Gene

(1) Read my book. For better or worse, the most that I can do in a short blog posting of this kind is to provide a summary of my argument and conclusions. There is no room to address potential objections and implementation details. I devote significant space to such details in the book and openly acknowledge that implementing my recommendations will not be simple. In fact, I devote an entire chapter to the limitations that patent law will face when adapting to automated inventing. I also point out, however, that doing nothing will result in even worse problems than following the path I recommend.

And for those of you who prefer eliminating the patent system entirely, or banning software patents entirely, as a solution, what reason do we have to think that the market, in the absence of patent protection for legitimate inventions which satisfy all of the legal requirements for patentability (not the kind of sham patents that are often used as straw men in arguments against software patents), will maximize innovation? Markets without patents can result in stifling innovation in their own ways, such as by producing monopolies. (The history of the software industry is not without examples of this, to the detriment of individual programmers and small software companies.)

Furthermore, as I also explain in detail in the book, attempting to ban software patents outright will just cause people to rewrite their software patents to read like hardware patents, and there will be no basis in law for rejecting such patents, unless you eliminate hardware patents as well. This is exactly what happened in the early history of software patents, and the result was to produce patents which were effectively software patents, but which were unnecessarily difficult to write and to understand as a result of trying to fit a square peg into a round hole.

Similarly, I explain in the book that if patent examiners and judges do not allow wish patents to be written in terms of abstract wishes, inventors will simply file very long and detailed patent applications on all of the many particular embodiments they have created (or could create) by providing a wish to a computer. You can imagine a patent on a wish for a class of gears which lists and illustrates hundreds or thousands of different individual gears produced using the wish, and then claims each one separately. Does such a patent simplify examination? Make the patent a better tool for putting the public on notice of the invention that has been patented? Reduce costs of patent procurement for inventors? Reduce costs of avoidance for competitors? No. It does exactly the opposite. Yet since each of the claims is to a specific gear (clearly patentable subject matter), and assuming that each of the gears is new, useful, and nonobvious, and that the specification explains how to make and use each of the gears, then each gear individually qualifies as a patentable invention.

The net effect of such a long and complex patent, however, is to provide the inventor with patent protection for the class of gears produced using the wish — the same legal effect as granting a patent on the wish directly. So what does either the inventor, the inventor’s competitors, or the public at large gain from forcing the inventor to describe and claim the class of gears at such a low level of detail, rather than more abstractly — and hence more simply and concisely?

Of course, there are some legitimate answers to this question, but they are much more subtle than you might think at first glance. That is why, as I suggested at the beginning of this comment, I suggest that you read my book.

By the way, inventors are the ones that apply for patents. You really should brush up on your patent law.

Also, and by the way, patent lawyers are not interested in extending the system to nearly everything. It is the US Congress and the US Supreme Court that have definitively and repeatedly said that you can patent nearly everything in the US. The role of any lawyer is to represent your client vigorously and when there is protection to be had thanks to the Congress and the Supreme Court then lawyers get that protection for their clients.

Whether you choose to accept reality, Plotkin’s idea is dead on accurate, and it will happen. We are on the brink of having innovations that will allow for a person’s thoughts (i.e., wishes) to operate machinery. Of course, the operative innovation here will be software, which is and always will be patentable in the US.

-Gene

In case you were serious with your Wish-patents, then I can tell you that in case you would be able to patent these new “inventions” then you have at least two problems:
1) who would be the owner of the patent? All people that have made the wish? or the programmer that wrote the code implementing the wish-to-design process (me and others
2) if any outcome from this would be patented, then you have the same problem as with software patents, that is they will efficiently stifle further innovation.

As you know software, you may know what a DAG (Directed Acyclic Graph) is. A DAG is one way to hierarchically describe software and any type of incremental innovations. If any node in this graph, which is connecting one level to the other is blocked by a patent, then it will efficiently cut all the infinite set of inventions that can be made from this node. Invent around? Sometimes possible, sometimes not. As soon as there are nodes that has to be passed (think about a simple thing like an “if” statement or something easily imaginable) then no further inventions will be possible.

OK, if we don’t want any development, just feed the patent system and lawyers, and are fine with a Status Quo society, then your wish-patents are fine, but… the idea with these wishes is to make technical progress isn’t it

Best regards
Roland Orre

I don’t know that I see any trouble with the search or it being any different. If the claims are not well defined to an apparatus they can be rejected over things that are unrelated, particularly for obviousness.

Can you elaborate a bit more on why you think the searching would be different? I know it is different, but I am particularly interested in hearing your thoughts as to why it would be so different that it would be hard to examine. It just seems to me that if you are familiar with software it would not be any different than searching another complex area that you are familiar with.

-Gene

I’m currently reading your book right now, so maybe my question will answer itself.

I have other issuesbut I will hold off on till I finish the book.