First, I would like to say that I don’t question that you have a superior grasp on patent law compared with me, or even just law in general, after all you are a lawyer, and I am a programmer. I have however, read the justification for protection systems like the patent system in the constitution, which is to promote useful advances in science and art, not to hinder people from using ideas, and I’ve read the entire copyright law, all ungodly hundreds of pages of it and the patent codes. I realize that interpretation of the law is more important than what it says, but I do know what it says.

All of the problems you addressed in your reply to me revolve around the way things are currently done, and I am suggesting that the current system is broken. More people are hurt, and more products and projects are hindered by patents than promoted by them, at least when it comes to software. The big companies like Microsoft and IBM have the lions share and so control the industry, because no software product is useful without at least one idea found in their huge portfolios.

My bottom line is that ideas should be available for everybody to use but implementations of those ideas should be protected. Despite the weak enforcement, probably due to abuses of patents, copyright offers all the protection for implementation and fraud anybody needs when writing software. Patents are only useful for keeping people from using ideas, a form of thought crime, and in my opinion it’s wrong.

Building off other people’s ideas is what creates competition, variety, and progress. The last thing we need in an industry that changes as fast as software is the government telling people what ideas they are allowed to use and which ones not, and which people they have to pay in order to use ideas.

“the eligibility framework that this Court developed during the Industrial Revolution— an era of tremendous advances in electronic and communications technology—retains its vitality, and relevance, today.”

“Computer-implemented process claims, in general, will meet the standard historically employed by this Court, which should be retained and reaffirmed.”

The full brief is here:
http://www.patentlyo.com/am-brief.pdf

Given your propensity to draw lightening, I wanted to hand you a metal rod and provide a brief synopsis of a discussion over at Patently-O that I am sure will charm all of your avid software patentability followers.

I will note that the conversation concerns an ongoing discussion with the only person I know of that you have banned from your site for his repeated and over the top ignorance of patent law – a blogger who purports to be an examiner at the USPTO and uses a host of pseudonyms and is generally famoosely known as 6.

The thoughts I have offered to 6 have been posted on this site as well and deal with the patentability of software from the macro view (pun intended, ouch sorry), specifically the thoughts concern what appears to be THE controlling Case law – Alappat, a CAFC En Banc decision that defines “particular machine”.
In relation to Bilski, I have put forth the argument that Alappat provides the protection necessary to meet either or both of the prongs in the Office’s proposed MoT test.

6 had been chirping along, praising the beauty of the Kappos Bilski brief, when suddenly the chirping stopped. On pages 38 and 39 the reason became evident. While still couched in the Office’s weasel words (no surprise), the gist of the capitulation is plainly obvious.

Let me quote:

“the machine-or-transformation definition may readily encompass most software claims because such claims could be said to concern the use of a machine (i.e., the computer itself ) or involve a transformation of matter (i.e., the writing and re-writing of data, represented by magnetic changes in the substrate of a hard disk or the altered energy state of transistors in a memory chip).”

And

“The Interim Instructions state that “computer implemented processes” are often disclosed as connected to a machine, i.e., a general purpose computer. Such a computer, “when programmed to perform the process steps” so that it performs the specific function contemplated by the process, “may be sufficiently ‘particular’ ” for purposes of the machine-or-transformation test. ; cf. In re Alappat, 33 F.3d 1526, 1545 (Fed. Cir. 1994) (en banc) (“[A] general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.”).”

It does appear that the Office has made it a part of their argument to the Supremes that software on a machine is clearly patentable, at least as far as 101 and passing the Office’s preferred test is concerned.

While I do not think you will find the holding of Alappat all that surprising, what may be surprising is that the Office now seems ready to capitulate on this front.

Of course, the anti-software crowd at Patently-O is speechless at this development

I think a more appropriate title would be, “How Software Copyrights Leave Small Businesses Open to Competitors”. That would accurately describe the contents of the post.

I believe this is a recurring theme. You seem to want every post I write to be a thesis or research paper, which is not realistic. I focused on why copyrights are inadequate. I am happy to write something else explaining what patents are, but that is pretty much throughout the site.

I do get your point though, and perhaps the creation of a comparison table would go a long way.

-Gene

Maybe I can explain by analogy. You’re saying something like this:

“Here’s why we need long novels. Short novels have fewer pages. They’re not as thick as long novels. They contain fewer words and chapters. Long novels have more pages and are thicker. That’s why we need long novels.”

You are just defining the differences between copyright protection and patent protection. You have not formed an argument for why we need the protections that patents provide in order for software business and innovation to flourish. Since there are significant differences between software development and e.g. automobile development, and there have been many historical examples of software companies and innovations flourishing without patents, it’s important to explain why software needs the added protection of patents. I suggested that the particular economics of software development mean maybe we can get away with only copyright protection and still have a flourishing software ecosystem. You have not explained why this is not the case.

I am sorry that you find the article not to your liking and lacking the information that is clearly there for all to see. It seems that more often than not you have a problem with the way I convey information and that leads you to the erroneous conclusion that the information is not presented. You say I do not explain why patents are needed, but you admit that I do explain why copyrights are not sufficient. You are making a distinction without a difference and I cannot understand that.

Plain and simple, and now this is at least the 4th time this is said on this page alone, patents protect functionality and copyrights do not. If you have a copyright others can make an exact replica of your work from a functionality level as long as they do not cut and paste your source code. If you cannot understand why that means that copyrights are not sufficient I don’t know what to tell you. I can only lead a horse to water, I cannot make the horse drink. If you are satisfied with protection limited to only exact and literal copying of the source code then by all means copyrights are sufficient. Everyone with any experience with code knows that there are many different ways to achieve the same exact result and functionality, so protecting but one alternative by way of literal and exact protection of source code is extremely narrow.

-Gene

No, you definitely didn’t. You explained why copyrights do not give as much protection as patents, by listing the things competitors can do if you only have a copyright. You made no effort to explain why this level of protection is not sufficient. Do you see the difference? You’re just listing the distinctions between copyright and patent protection, not telling us why we need one and not just the other.

All the best,
C. Scyphers