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

Thanks for your comment. I appreciate you reading.

As far as wisdom, I am not sure anyone has ever accused me of having that. Life is a journey though, and I do appreciate your comment. Perhaps I will get there, eventually.

Cheers.

-Gene

I love your blog and the updates you provide and I think it would be a more productive and friendly environment if we all use fairer language and respect the opinions of others without presenting arguments like a reply to an Office Action. We all know that there will always be people who disagree with each other and that the “bigger and generous man” is wisest of all.

I say this because I think the intention of your blog is, not only for marketing purposes, but for the arousal of useful and productive input from the community that follow you.

Regards,
George

You say: “If I found a way to compress data to 10% of the size of the best available algorithms but didn’t release the source code, do you think other companies would be able to rip me off? Of course not, because if it was that easy, they would have done it already.”

RESPONSE: This statement demonstrates just how naive you really are. All unsophisticated inventors have this kind of hubris, and those who really believe this are destined to fail. I have never understood the arrogance of those who think that they and only they could ever come up with a particular solution. The reality is that this is nonsense and if you are smart enough to come up with the solution others are as well. The sad thing is that if you come up with it first, do not get a patent and then the second party who does come up with it gets a patent they will actually be able to prevent you for using the invention you created first. In the rest of the world that may not be the case, and it is not the case in the US in the narrow niche of business methods, but in the US only business methods enjoy prior user rights. So those that sit on their rights and do nothing may find themselves preventing from doing what they came up with first. So go ahead and be naive if you want, but don’t cry when others who are sophisticated in patents and business cut you off at the knees.

You say: “For the idea to even be worthy of a patent it should be of sufficient quality that other people CAN’T figure out how to rip it off, and that a patent is needed to pry the information out of the Einsteins who invented it.”

RESPONSE: You are welcome to that opinion, but it is important for everyone reading to understand that this is not the law. I can assure you with great and unquestioned certainty that you do not have to have an Einstein level revolutionary invention to get a patent. Whether that should be the case can be debated, but it certainly is not the law in the US. So once again, you are welcome to do whatever you want with your work, obtain patents or not obtain patents, but don’t cry that you are being subjugated by those with business sense enough to understand what the law is and exploit it to their own ends.

You say: “If you are worried about competitors ripping you off, then you don’t deserve a patent in the first place.”

RESPONSE: Actually, that is the only reason to get a patent. It is clear you do not know much about the patent system, nor patents as an asset or using patents to forward a business objective.

I have explained in detail in the article why copyrights are not enough protection. The fact that you do not want to believe what I say doesn’t change the fact that I said it. Nevertheless, allow me to say it once again, and now for at least the third time on this page. Copyrights protect the code, specifically the source code. All a copyright will do is prevent others from cutting and pasting your source code and taking it as their own for their own product. Copyrights do not protect function, patents protect function. So if you have a really cool software product and I like it and all you have is a copyright what I do is create exactly what you have independently without cutting and pasting your source code. If I do that then you cannot stop me. If you had a patent you would be able to stop me from creating anything that provides the functionality you define in the patent claims, whether the source code is identical or not.

To be perfectly honest, I wonder if you really even read the article. I explain the limits of copyright protection in the article, and yet you say all I do is reach a conclusion and vigorously assert the conclusion. Obviously you are not following along, because that is not what I did, and not my mode of operation.

In terms of first to market, the point of the article is to explain why folks need software patents and cannot rely on copyrights. If they don’t want patents then by all means don’t get them. But if a willful choice is made to not obtain patents then those who make that ridiculous decision need to man up and live with the consequences. Others will obtain patents, are legally entitled to obtain patents and legally entitled to enforce said patents. If you don’t have patents yourself and rely on copyrights you have almost no useful protection and you are a target for those who do have patents.

-Gene

I thought your article was about whether or not software patents are necessary or desirable in general. Whether or not they should be ignored in the current legal climate is a separate issue.

“Pure and simple, copyrights are not enough.”

Truth By Vigorous Assertion is not a convincing argument. You’re very clear that copyright protection is not sufficient for software businesses to thrive, but you have given no reason why that is the case. “Someone might copy your idea,” while true, doesn’t address the fact that I might be able to make money anyway. Someone might copy your idea for a novel, too, but not many people are suggesting we have literary patents.

If my program is so simple, and the ideas in it so easy to duplicate, then no, I don’t deserve protection from the big companies, because I haven’t really contributed anything, I just beat everybody else to the punch on something that wasn’t to difficult to figure out in the first place.

If I found a way to compress data to 10% of the size of the best available algorithms but didn’t release the source code, do you think other companies would be able to rip me off? Of course not, because if it was that easy, they would have done it already. The idea is that rare, truly innovative discoveries that will not likely be rediscovered for a very long time be disclosed in at most 20 years by offering the inventor a patent, which he presumably doesn’t need in the first place.

The problem is, this never happens in software. To even bring up the point about competitors ripping anybody off shows how the current system is broken. For the idea to even be worthy of a patent it should be of sufficient quality that other people CAN’T figure out how to rip it off, and that a patent is needed to pry the information out of the Einsteins who invented it.

If you are worried about competitors ripping you off, then you don’t deserve a patent in the first place.

If you think first to market is what matters then by all means go ahead and ignore patents. Then when your software is successful and larger entities rip it off without actually copying the source code and put you out of business then you get what you deserve, which is nothing.

Pure and simple, copyrights are not enough. With a copyright you protect exact source code, nothing else.

-Gene

It’s more significant that you can prevent others from copying the binaries you generate from your source code, since most businesses aren’t going to let anyone see their source code regardless of IP rights.

The most important question, which you don’t address, is this: are these very limited protections enough? Merely having copyright protection allows competitors to duplicate your software in many different ways, but that might not matter. The few protections provided by copyrights may be sufficient to allow business and innovation to flourish. If that’s true, then we get what we want, without having to pay the costs of the patent system.

We have a saying in the software industry, “Ideas are cheap, execution is hard.” I’ve heard fiction authors express the same sentiment, in different words. Notice that it says “execution is hard,” not “execution is expensive.” Writing successful software takes a lot of time and skill, but not a lot of capital. Because of that, we have a situation where the initial financial investment is low, but the first-mover advantage is still significant. It may well be that this is enough to make software development worthwhile for businesses.

Exactly. Often times inventors and other small entities simply don’t have the cash or the infrastructure (e.g. universities) to commercialize their inventions and so licensing is their only recourse. Unfortunately, under current law if they approach a large infringer like Microsoft to take a license they will be sued for a declaratory judgement in some distant location which will put their patents on ice for several years in which time the small entity likely will go bankrupt. Big companies love that.