Obscure Patents: These are SO much better than software

By Gene Quinn on November 29, 2009

Headgear for attaching toy, US Patent No. 7,621,000

Headgear for attaching toy, US Patent No. 7,621,000

It should come as no surprise, but I think software and business methods should be patentable, assuming of course that they are new and non-obvious.  There is simply no justifiable reason to carve out an exception for software or business methods, and I am getting more than just a little sick and tired of the whining and complaining from the anti-software patent crowd.  If you listen to what they say it is extremely pathetic, and oh so revealing.  The primary argument is that software patents inhibit innovation, which is pure fiction of course.  This devolves quickly into the substance of what they believe; namely that software should be free, which really means you create it and I steal it.  They whine and complain that it is unrealistic and unfair for them to have to search patents before they start writing code, as if that is any kind of justification.  Being lazy and then having the audacity to complain is nothing short of nutty.  Yes, they complain that they shouldn’t have to engage in the same business practices as every other business because they are special and software should be free.  You can see the circular, self-serving and ridiculous logic.  They think they are different, which is certainly true just not for the reasons they think.  They are so myopic that they actually believe business realities shouldn’t apply to them, only others should be required to do patent searches and respect patents.  Anyone with teenagers is likely familiar with such self serving logic and the faux victim approach to life.

In any event, while it is always fun and at least somewhat therapeutic to beat up on the anti-software patent crowd, that is not the purpose, or at least main purpose, for me writing today.  I thought it might be interesting to take a look at a few recently granted patents and see some of the far more important inventions that are worthy of obtaining patent protection.  Before I go any further allow me to point out that I am not trying to beat up on the Patent Office here, but rather to illustrate the complete and total reckless stupidity that is gripping the debate relating to whether we should allow software patents and business method patents.  The Patent Office issues patents (again, hurray!) and they are not and should not engage in picking what subjectively warrants protection, KSR v. Teleflex and the Supreme Court notwithstanding.  But the debate regarding whether we should completely and totally cripple our economy and essentially decide that anything that causes a computer to operate should be free for a bunch of lazy individuals to copy is nonsensical.  As if such juvenile complainers who refuse to operate in a business appropriate manner would ever invent anything anyway!  For crying out loud even Red Hat and many other new-age open source companies are pursuing a responsible patent strategy!  But, once again, I digress.  I just can’t help myself.

Without further ado, here are some interesting recently granted patents, which must be far more important than software because no one is suggesting these inventions be determined to be unpatentable subject matter.

Reversible sweatshirt with secure pocket
US Patent No. 7,620,998

Issued November 24, 2009

Just what the world needs! Another patented reversible sweatshirt! This patent seems to have a number of typographical errors, which is not the point but an unfortunate reality. In any event, this invention allows the wearer to select which side of the reversible sweatshirt to wear. How magnificent! This is much better than software that could be used to cause a computer, or cell phone, to do any number of extraordinary things that make tasks doable in a relevant time frame. Really, who needs software when you can do it by hand using pencil and paper, right? The fact that even simple tasks could take you a lifetime to accomplish with pencil and paper and only seconds to accomplish using software is of absolutely no importance. Particularly not when you are wearing a patented reversible sweatshirt!

Headgear for attaching a toy
US Patent No. 7,621,000
Issued November 24, 2009

This is just what I always wanted! A baseball hat capable of securing a matchbox car! Now life is complete! So much better than a method of engaging in complex financial transactions, identifying patterns in enormous amounts of data that would take an individual several lifetimes to process or even a method to save money on your taxes. Much better than a tax saving invention indeed, and we all know how Justice Ginsberg hates those tax saving methods, right! I mean during the Bilski oral argument she kept bringing that up. Maybe she is just doesn’t have enough money to benefit from competent tax planning advice, or maybe she is worried about how Congress and the President will pay for a ridiculously ambitious agenda when people could actually save money on taxes. I can hear the slogan now, 15 minutes and a universally evil business method on tax saving methods could save you 15% or more on your payment to Uncle Sam. Who would want to save money on car insurance, or on taxes for that matter when you could spend your time worrying about which matchbox car you will affix to your head gear!

Casket with natural materials from a location having sentimental connection to a deceased
US Patent No. 7,621,027
Issued November 24, 2009

This is straight from the you have to be kidding me department! No need to look anywhere other than the claims for the humor, irony or depressing sadness depending on how you want to view it. Claim 1 defines the invention:

A casket liner for placement inside a casket, comprising: soil obtained from a specific location and selected to express a connection between a deceased and said specific location; and a substantially planar platform adapted to be at least partially covered by said soil and operative to be used in a burial process, wherein said soil is permanently adhered to one or more portions of the surface of said platform thus exposing said soil for contact with the deceased.

I well understand why there are so many patents on caskets and urns. Many people would like to spare no expense on their loved ones, and memorabilia compartments are a favorite patentable feature for these types of devices. But if the next generation casket is patentable subject matter shouldn’t something as useful as software or relevant to business as a method of accomplishing a task better, faster and more accurate also be patentable subject matter?

Method of washing laundry in drum washing machine
US Patent No. 7,621,013
Issued November 24, 2009

This invention, which is a washing machine, should drive home the slippery slope we face. If you look at Claim 1 it is clear that this is not really a patent to a washing machine after all, but rather a method of doing business. You see the claim covers a method of washing laundry in a drum washing machine and includes steps of supplying water, washing laundry, injecting steam into the tub, rotating the drum and then stopping the steam generation. Claim 1 does not cover a device, but rather a method, and it should be clear that this method could be employed by individuals or by a commercial laundry service or dry cleaner. So exactly where do we draw the line with respect to business methods? If we eliminate anything that can be used in business that pretty much eliminates most methods, and perhaps most inventions too! After all, isn’t the casket with soil platform just a method for getting devastated family members to part with money at a time when they are least capable of making rational decisions?

The Author

Gene Quinn

Gene Quinn is a patent attorney and the founder of IPWatchdog.com. He is also a principal lecturer in the PLI Patent Bar Review Course, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam.

Gene’s particular specialty as a patent attorney is in the area of strategic patent consulting, patent application drafting and patent prosecution. He has worked with independent inventors and start-up businesses in a variety of different technology fields.

is admitted to practice law in New Hampshire, is a Registered Patent Attorney licensed to practice before the United States Patent Office and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. As a patent attorney he is able to represent inventors and businesses seeking patents across the United States.

You can contact Gene via e-mail.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 32 Comments comments.

  1. Vijay Kumar M November 30, 2009 8:55 am

    Dear Gene Quinn,

    I completely agree with you on protection of software and innovative business method through Patents. Patent law intended to protect all technological arts including software and business methods; however it is judicial interpretation that laying paths for no software patents. Open source and free software movements are their choice and it should not be considered as every one choice.

    Vijay Kumar M.

  2. American Cowboy November 30, 2009 10:27 am

    Patents on stupid gizmos like you mention have one downside: they open the patent system to ridicule by the no-nothings who simply want fodder to attack patents generally. Anybody can choose to dislike patents for wasting time, money and effort on these kinds of things. (The fact that the applicant who will own the patent is required to pay for the PTO in full-cost-recovery-fees plus the special tax on innovation that the Congress imposes by diverting user fees, of course, makes that a non-issue) Disliking goofy patents, of course, has nothing to do with closer questions like how to determine what meets the standard of Sections 101 and 103. Laypeople trying to opine about those matters get themselves and each other confused, when they point to the gizmo patents as the end result and claim that the patent system has gone awry. The method of swinging on a swing is a recent example that they often point to.

    Goofy patents have been around for generations. Do a search for art patented in the 1890’s, 1920’s, etc. and you can find the same kinds of “who in the world would want this?” stuff. The patent system brings out the creative, and sometimes the “creative” are also a bit nutso. So what? There is no harm done in issuing patents that preclude others from doing what they don’t want to do anyway.

    While we can find this stuff entertaining on blogs like this, the risk is that laypeople pick it up and reach bizarre conclusions about the way the patent system works.

  3. Gene Quinn November 30, 2009 2:10 pm


    Point definitely taken. There have always been crazy patents, and there always will be crazy patents. These patents don’t even strike me as crazy though, and I plan a follow up post on at least the hat with matchbox car. That strikes me as something that could be quite marketable and profitable if done right.

    Of course the big problem is that people don’t understand the patent laws, yet offer opinions. The patent laws are not intended to ensure every patent is non-crazy, or even an advance. They system is set up to foster innovation, not to ensure every invention is a step forward. Another thing I need to write about.

    To some extent I guess I hope that the anti-patent folks use these and other things to suggest we need to do away with patents. We need to flush them out and force them to show who they are and what they really want.

    In terms of the swing, I have never thought that was ill advised. Finding prior art for simple things can be very difficult, particularly in that case where everything you read says “don’t swing side to side.”


  4. Fan November 30, 2009 2:30 pm

    One other point about “crazy patents” (which I’m pretty sure Gene has already made in previous posts): Ultimately, crazy patents aren’t the ones that get litigated. They may make for amusing comment (and fodder for the anti-patent crowd) but those types of patents don’t end up in court. The patents where patent holders (and contingent fee counsel) expend million of dollars on asserting and defending are the ones that have real-world applicability.

  5. Adam November 30, 2009 3:20 pm

    I see you’re trolling pretty hard on this one, Gene. While I’m sure throwing out insults at those who disagree with you is fun for you, it doesn’t benefit anyone else.

    Your examples do illustrate a good point, though. There’s absolutely no connection between patentable subject matter arguments (e.g. software and business methods) and silly patents granted by the PTO.

    I will address one question you ask:
    “So exactly where do we draw the line with respect to business methods? If we eliminate anything that can be used in business that pretty much eliminates most methods, and perhaps most inventions too!”

    I have previously suggested that we only call things “business method patents” if they cannot be practiced outside of a business. I think that’s what most people mean when they use the term.

  6. Gene Quinn November 30, 2009 6:49 pm


    Throwing insults? What exactly did you think was insulting? I merely described (and quite accurately I might add) how the anti-software patent folks view life, the world and what they are entitled to. Really, they think anyone is going to feel bad that they have to do a patent search? The odd thing is they actually think they are special and due to the nature of what they do they should be able to ignore the law and business realities that face everyone of us. Noticing that and calling it what it is cannot be viewed as insulting in any way. It is purely descriptive.

    Under your definition of “business methods” we essentially prevent anything useful from being patented. Satellites are only capable of use to forward a business plan, and cannot be used or employed by individuals, so I guess that means Satellites are not patentable. What about vaccines or the cure for cancer? Would those not be patentable because they could only be practiced in a business context and it is not practical for individuals to do it on their own? You see, innovation costs such large sums of money any more that so much of the most vital innovations can only be practice within a business context where funds are available or can be acquired.


  7. Gene Quinn November 30, 2009 6:54 pm


    Definitely. The only harm in granting crazy patents is that scam companies can realistically tell unsuspecting and unsophisticated inventors that pretty much anything is patentable. There is no cost to society for granting a patent on a swing that goes sideways because it would never be enforced. We can search the world over and spend millions of dollars ensuring only new and non-obvious things get patented, or we could liberally grant patents and have a streamlined approach to resolving disputes if a patent turns out to be valuable enough for a challenge or to be copied. Of course, that makes sense and actually would encourage business sensible outcomes and even capitalism, so it seems like such an approach has very little chance of taking hold.

    Thanks for reading.


  8. Adam November 30, 2009 10:34 pm

    “What exactly did you think was insulting?”

    “you create it and I steal it”
    “a bunch of lazy individuals”
    “circular, self-serving and ridiculous logic”
    “self serving logic and the faux victim approach to life”
    “complete and total reckless stupidity”
    “juvenile complainers”

    Yes, calling people lazy, self-serving, recklessly stupid, juvenile, faux victims is insulting. Those insults are not “purely descriptive” and add nothing to the debate. You are doing nothing more than name calling. Or are you claiming to know the motivations of everyone who disagrees with you? (Obviously, it’s impossible for you to know the motivations of people you don’t know, so you must necessarily be making things up.)

    “Really, they think anyone is going to feel bad that they have to do a patent search?”

    I don’t think anyone wants you to feel bad for them. They just want you to recognize the realities of the world. You know how you run your website on free software that was written by hundreds of people, mostly in their spare time? The reality is that they wouldn’t have been able to write that software if they’d had to do patent searches for every feature and algorithm included in it. You might say you’re fine with that, but you’re also not buying commercial blog software that is backed by patent searches. Also, many of those people are the “lazy faux victims” that you like to insult one minute, then take their hard work straight to the bank the next minute.

    “Satellites are only capable of use to forward a business plan, and cannot be used or employed by individuals”

    How is that true? Anyone with the money can put a satellite in space and use it.

    “What about vaccines or the cure for cancer? Would those not be patentable because they could only be practiced in a business context and it is not practical for individuals to do it on their own?”

    What do those things have to do with businesses? Anyone with the money can create vaccines. Anyone with the money can create a cure for cancer, if they know how. They do not require businesses. There are thousands of individuals with the money to do these things, so they don’t fall under my definition.

  9. Gene Quinn December 1, 2009 1:08 am


    None of those things are insulting, and each are 100% purely descriptive. How could you ever think that “you create it and I steal it” would be insulting? That is exactly what the anti-software patent people say. They are lazy, their logic is self-serving and they play the role of a fake victim. Exactly what is not 100% correct in what I say? They clearly do add to the debate because it exposes their ridiculous positions for what they are. No name calling whatsoever, just describing things truthfully and keeping it real. Why do these things offend you?

    I don’t take their work to the bank, I just use it since they give it away for free. Where exactly is the harm in that? Isn’t that what they want? They give it away so why would they complain that someone uses it for free? After all, that is the goal, right? They give stuff away for free and people use it for free? How does this have anything to do with the ridiculous positions they take about software, software patents and being victims?

    Yes, anyone with money can put a satellite into space and use it, but no one does, only businesses do. Again, you are right, anyone with money can create vaccines. But it requires lots of money and individuals don’t do it, only businesses. Same goes for break through drugs, cures and treatments. I know you realize that under your definition of business methods that means none of these clearly patentable things would be patentable. Your proposed test simply wouldn’t work. It is ill defined, hardly certain and would make practically everything unpatentable. You just don’t like that it isn’t as simple as you would like it to be.


  10. breadcrumbs December 1, 2009 6:17 am

    In a perfect world, communism would be a good thing and innovation would not depend on incentives.

    Understanding that we do not live in a perfect world is a first step that some refuse to take. Those that refuse to learn, cannot.

    It is no surprise to note the typical alignment of political leaning and view on intellectual property of antagonists of so-called software patents and patents in general.

  11. Adam December 1, 2009 7:12 am


    I see communication has broken down between us again, since you’ve taken to just repeating yourself once again, without adding any information. It makes me wonder if you think the Proof by Assertion fallacy is a valid way of arguing.

    “I know you realize that under your definition of business methods that means none of these clearly patentable things would be patentable. Your proposed test simply wouldn’t work. It is ill defined, hardly certain and would make practically everything unpatentable.”

    This is false, but I thought it was understood I was referencing my full definition that I wrote out on a previous post, but you probably didn’t see it the first time I wrote it:

    If you have any concrete criticisms of the definition, other than the irrelevant and unrelated observation that everything can be used in a business, I’d love to hear them.

  12. Adam December 1, 2009 8:25 am

    Gene, you said “I don’t take their work to the bank.” I just realized that you must not have understood what I meant with that, since my phrasing was similar to an idiom with a different meaning. What I meant was that you make money from their work.

  13. sburch79 December 1, 2009 1:43 pm

    I think you gloss over an important part of your argument regarding software patents. You first say “software and business methods should be patentable, assuming of course that they are new and non-obvious.” But then go on to chide developers for not searching patents before they begin writing code. If the patent was so “non-obvious” then what are the odds that the developer would actually infringe on the patent? It should be pretty low, but the reality is it is not. Most software patents take incredibly obvious things, add a computer, and declare themselves novel. And what makes it worse is many patents are never utilized, just held by companies waiting for someone with money to “violate” their IP. I agree ,however, that there shouldn’t be an exception for software, just people in the patent office who understand software better, so as to weed out the majority of software patent applications.

  14. Gene Quinn December 1, 2009 2:05 pm


    You say: “If the patent was so “non-obvious” then what are the odds that the developer would actually infringe on the patent? It should be pretty low, but the reality is it is not.”

    This is not true. Under this rationale there would never be any kind of infringement of any patent because if others could copy what has been done (knowingly or unknowingly) then the underlying invention must have been obvious. That is not the law, and it never has been the law. Obviousness must be determined at the time of invention, not at some point years later. This is exactly why so many in the software community inappropriately get upset about software patents. They read a patent in 2009 that was issued in 2003 on an application filed in 1999. Then they say that this has been used for many years. True, but that is irrelevant. The question is whether it was obvious prior to filing, and typically several years prior to filing. When you look at the facts in most cases there is just no evidence a software related invention was obvious several years before the patent was filed, so the invention is not obvious. The fact that a decade later someone came up with the same thing doesn’t mean that the invention was obvious a decade earlier. The fallacy here is a typical independent inventor mistake. Independent inventors frequently believe their invention is so unique no one else could have or would have ever come up with it. The converse is also true; the fact that someone comes up with the same thing later doesn’t mean it was obvious earlier.


  15. sburch79 December 1, 2009 2:21 pm

    I don’t disagree with you. However, what you say isn’t the case most of the time. Many of the patents weren’t “non-obvious” at the time of their creation.
    Here is a 2006 patent for linked list – http://www.patentstorm.us/patents/7028023.html
    Here is the wikipedia page on linked list – http://en.wikipedia.org/wiki/Linked_list
    In essence they patented something that was 50 years old. If I were to start a software company today and create software using a linked list, I open myself up to litigation. But I’m supposed to check through all patents to see if a data structure that was taught to all first year CS students is patented? This is typical of software patents (and patents in general), they use vague, legalese wording to describe something incredibly obvious and then the patent office approves it because it involves a computer so it must be new. How exactly does this increase innovation?

    And I understand that I may win a lawsuit if the patent turns out to be invalid, but I shouldn’t have to defend myself against bad patents. Fear of lawsuits (among other things) is why I never followed through on starting my own software company and instead I’m now in law school. Now seriously, how is adding another lawyer to the pool going to increase innovation :)

  16. Gene Quinn December 1, 2009 3:01 pm


    Bite your tongue! Of course adding another lawyer will help!

    I am not sure I would agree that what I say isn’t the case most of the time. I think if you look at the cases that have caused the most stir in litigation the claims are not invalidated. Certainly there are situations where old stuff gets patented, and particularly so in the software area. On first glance the patent you provide appears to be such a case.

    We obviously need a better way to examine software patents, and the meager amount of time examiners get is woefully inadequate. Still, under the peer-to-patent program only about 1/3 of the allegedly knock out prior art was found relevant and used by patent examiners. It is not cut a dry, although better searching is key. I tend to think that outsourcing of examination in software would do a world of good, as would blind review of applications.

    In terms of fear of lawsuits, if you have your own patents you really have nothing to fear in the software area. You only have to worry if you don’t have any patents!


  17. sburch December 1, 2009 11:00 pm

    You say “if you have your own patents you really have nothing to fear in the software area.” I think that is the fundamental difference between us. When I think of starting a software company I think I need good software, you think I need a patent attorney on retainer. While that’s good for some parts of the economy (Ahem) when people need a patent attorney just to start a small business that can’t be good for the economy as a whole.

    “I think if you look at the cases that have caused the most stir in litigation the claims are not invalidated.”
    I don’t think this proves as much as you imply. As I said before, patents are hard to understand, I had a provisional patent (was recently rejected) regarding software I had a major part in writing and yet I had a hard time understanding what it said (and I am in law school as well). If the judge/jury were all software engineers then the overturn rate might be higher, but instead you have a lay judge/jury who doesn’t really understand the specifics of either side and the side with the patent has the presumption. So I can imagine most of the time the lay jury is going to believe that the experts at the patent office got it right and us “lazy” software developers just stole it.

  18. American Cowboy December 2, 2009 11:06 am

    “when people need a patent attorney just to start a small business that can’t be good for the economy as a whole.”

    Edisons started several businesses once he consulted his patent attorney. Also Alexander Graham Bell, Wright Brothers, etc. Software is NOT special.

  19. Gene Quinn December 2, 2009 12:04 pm

    I agree with AC. Edison, Bell, the Wright brothers and so many other great inventors also had a business sense about them. Just like the many talented engineers and scientists who lose their jobs during every recession and go out and invent, these and other successful innovators know the importance of patents. While software is certainly not special, what makes it unique is the lack of business savvy by many in the industry. If you don’t like patents that is fine, but a personal choice to not pursue responsible business practices doesn’t mean the rest of society should have to water down the law to be consistent with such short-sighted and counterproductive positions.


  20. Pissed Off Programmer December 2, 2009 3:02 pm

    I have mentioned before, and will add here again, that I believe copyright is the only protection needed for software. Some zealots want to get rid of copyrights in software, including the FSF/GNU, and they treat both like any enemy. I personally feel like it should be an either/or situation. Why should software be subject to patents and copyrights? If I violate somebodies patent without ever looking at their source code then the patent must be very generic because disclosure of the implementation wasn’t required, only the idea and a black box example.

    Let me throw out a hypothetical scenario and preface it by saying that I don’t know if patents do or do not exists for this; although I think there isn’t since the author published it for the purposes of people using it. There is a process for rotating an image by an arbitrary degree called rotation by shearing. The process itself can be described without the actual algorithm. The algorithm itself is a bit complicated and requires knowledge of some calculus, trigonometry, matrices and few other things. Lets break this down into its component parts.

    The idea – to rotate an image by an arbitrary degree: This is just an idea and anybody should be able to use it.

    The algorithm – this is just math that has been around for a long time and should be usable by anybody

    The process – Here is where we get into patentable subject matter. The algorithm is a combination of unpatentable math used to implement an unpatentable idea. However, the arrangement of mathematical operations is unique and was non-obvious at the time it was invented, for the purposes of rotating an image by an arbitrary angle.

    It seems like everything is in order for this to be patented, and it probably would be if the guy tried to, and maybe he did, who knows. My only problem is this.

    Anybody should be able to implement the rotation of an image by an arbitrary angle because that is an idea available to everybody. Anybody should be able to use all the mathematical operations involved in the algorithm because they are available to everybody. The only thing that could be protected is the precise combination and ordering of the operations. But if you have a precise combination and ordering of operations then it is subject to protection under copyright, so where is the need for the patent?

    Again, I have read all of the copyright law and all the patent codes. I am not a lawyer and not a law expert, but I do have a working understanding of the system, the codes, and the regulations. You will probably try to tell me that I don’t know what I am talking about and that I am not an expert, that I am just ignorant, and that I should leave these matters to people who know best.

    Consider this, you have said in the past that the only people perpetuating the ‘myth’ that software is math are computer scientists and mathematicians. Computer scientists and mathematicians like me are experts in our field just like you are an expert in patent law and law in general. Before you make any statements about what software and math are, consider your own double standard. I don’t beat you over the head and call you ignorant and say that you don’t understand what you are talking about, even though under your own pre-context I ought to.

  21. American Cowboy December 2, 2009 5:12 pm

    PO Programmer, your rotation by shearing hypothetical is helpful. I think Gene and I would agree that the protection should be algorithm-level of detail or finer; it is not simply math as you conjecture. If it was simply math, you could do it in your head or with a pencil and paper and still you would not see the image rotate. But on a computer monitor, in fact, you can see image rotate. Thus, the protection would be for something like this:

    A computer comprising a processor and monitor, the processor being loaded with a program that runs XYZ algorithm, the XYZ algorithm causing an image on the monitor to rotate.

    Note that this is not code-level specific, which is what copyright would protect. If you can do this in Cobol, Pascal, C++ or whatever, it infringes. If you own the patent claim I outlined and the copyright for doing it in Cobol and somebody else starts out and writes his own code to do it in C++, he does not infringe your copyright, but he does infringe your patent.

  22. Pissed off Programmer December 3, 2009 11:39 am

    -American Cowboy

    I understand your point, but I feel that this is where understanding for non-experts starts to break down. I will admit that what I am about to say is usually the cause for us to demand special treatment as Gene points out. Let me ask you a simple question. Are these different?

    2 x 2 x 2
    2 x 4
    2 ^ 3
    2 + 2 + 2 + 2

    They are written differently, but they are equivalent. C++, Pascal, Java, or any other language is never executed on a computer. A computer can only execute machine code. It is possible that two different C++ compilers will turn the same C++ code into different machine code, and that a C++ compiler and a Pascal compiler could produce the same machine code.

    High level code, which almost all programs are written in today is just an intermediary form, and in fact many professionals benefit from being able to rewrite, or refactor, code into an equivalent form. Here is where the process part becomes a bit messy. Again using a simple example.

    If I say I have a process for finding a power of a number buy multiplying that number by itself, is that different or the same as a process for finding a power of a number by adding the number to itself? Multiplication is just extended addition. This is a completely oversimplified example, but it gives some idea as to the subtle complexities that can arise. Sometimes in Math you need to rewrite expressions to an equivalent form in order to work with them, and this only works because they are truly equivalent. If my C++ code adds and the machine code the compiler produces multiplies, it is ok, because they are really the same.

    Saying that you need patent protection because a person could rewrite the code in a different language and get out of copyright doesn’t make sense to programmers because we realize that they are really the same, or at least equivalent. This makes sense intuitively because pseudo-code would be worthless if any implementation of it could produce different results.

    Now what I am saying may seem very dangerous, that all equivalent forms of a program, or all possible equivalent forms should be covered by the same copyright. In a sense I guess I am, because if you went through a novel and searched and replaced words with synonyms, people would see that as plagiarism.

    However, a different algorithm or process that comes to the same result is no the same thing as an equivalent form of the same algorithm. There are for example different ways to rotate an image on the screen that do not involve rotation by shearing. The process of rotation by shearing can be written many different ways and is in fact rewritten by every compiler, but they are all rotation by shearing.

    Your example of

    “A computer comprising a processor and monitor, the processor being loaded with a program that runs XYZ algorithm, the XYZ algorithm causing an image on the monitor to rotate.”

    would be nice if it replaced with XYZ with “rotation by shearing”, and I don’t think many people would have a problem with something like that, assuming “rotation by shearing” had an objective meaning that was available to everybody.

    However, a lot of software patents leave out those important details and instead say something more like.

    “A computer comprising a processor and monitor, the processor being loaded with a program that causes an image on the monitor to rotate.”

    People like Gene would say that those patents should be invalid and can be safely ignored. There are millions of patents out there and searching through them to find relevant ones, much less figuring out which ones to ignore and which ones might cause you trouble is a horrible waste of time and money, and there are far to many bad software patents issued.

    I don’t think there is any substantial difference is what I believe and what you guys believe, only how it should be accomplished. If copyright were executed the way I described we wouldn’t need software patents.

  23. American Cowboy December 3, 2009 1:32 pm

    My understanding of copyright protection for software is that if the original is in COBOL and Mr. X sees that COBOL code and understands how it works and then writes a program in Pascal that does the same thing, it does not infringe the copyright, because he copied the idea, not the expression.

    Also, if Mr. Y never sees the COBOL code or anything about the running of it as compiled and on his own writes a COBOL code that looks like it must have been copied (but it wasn’t because he never saw the original — it was just a coincidence), that does not infringe the copyright either, because copying is a requirement of copyright infringement. Independent creation of what appears to be a copy is not copyright infringement.

    So, If we say that the program that happens to have been written in COBOL should be protected against either of these two types of activity, by Mr. X and by Mr. Y, we need to resort to a patent.

  24. Pissed off Programmer December 3, 2009 9:32 pm

    -American Cowboy

    That is what I am trying to tell you, it doesn’t matter what language the program is written in because it will be translated and changed before it is ever run on the computer. It is possible that a program written in Pascal and C++ will compile to the same machine code and be identical when actually run on the computer. An algorithm is a process. If the thing that is being protected is the process, and algorithms are processes, then any implementation written in any language that follows the process must be identical, otherwise they are different processes. This must be true logically because it isn’t possible to write an algorithm that isn’t a process. An algorithm of less than 2 statements is just a statement and not an algorithm.

    “… writes a COBOL code that looks like it must have been copied ”

    The important concept to get across here is that the algorithm IS the process. Simply writing code that does the same thing does mean that you copied the process. There is no need for seeing if it looks like it was copied or not, we have an objective way to determine if it is the same process. The process is independent of the code, but the opposite does not hold true. It’s a lot like phone numbers and words. Each number represents three or four different letters. You can make many different words from the same phone number, but each word only maps to one phone number. An algorithm can have many forms, but all those forms map to the same process.

    Consider rational numbers for a second. You can rewrite the number 1 infinitely many times as a number over itself. Just because there are infinitely many ways to write the number 1 doesn’t mean that they are any other number than 1.To say that nine divided by nine is a separate number just because it is written differently doesn’t make any sense, and saying that a process written in a different language is a different process just because it is written in a different language doesn’t make any sense either.

    If I copy a book into Turkish, that doesn’t allow me to circumvent the copyright and that is a much more loose translation than computer code. Copying an algorithm into another language or re-factoring the syntax shouldn’t allow me to circumvent the copyright either.

    I agree with the general argument that (for the most part) lawyers and law makers don’t understand computers or software. If copyright were enforced the way it ought to be in reflection of what software actually is, then there would be no need for patents. The only thing patents do is open up the gate for protection of abstract ideas, which isn’t possible with copyright. One of the major arguments for software patents is that there is a need to protect the processes in software engineering that can’t be covered by copyright, but that is an opinion made in ignorance of what software is.

  25. Pissed off Programmer December 3, 2009 9:34 pm

    There is no way to edit comments but I felt the need to make an important correction. I meant to say that writing code that does the same thing DOES NOT mean that you copied the process. Sorry about the extra post.

  26. American Cowboy December 4, 2009 8:38 am

    “Copying an algorithm into another language or re-factoring the syntax shouldn’t allow me to circumvent the copyright either. ” I see that you believe this, but it turns out you are wrong. Copyright does not protect processes or ideas. If you write a book about how to repair a car, you have no copyright protection for the car repar procedures you describe. You only have protection for the way you describe it.

    ” If copyright were enforced the way it ought to be in reflection of what software actually is, then there would be no need for patents.” But copyright is not enforced that way. So, given that premise, which neither you nor I can change, do you prefer free-range copying of algorithms or patents to protect their inventors?

  27. Pissed off Programmer December 4, 2009 9:32 am

    -American Cowboy

    “If you write a book about how to repair a car, you have no copyright protection for the car repair procedures you describe. You only have protection for the way you describe it.”

    Again I see that you don’t understand. I book on car repair doesn’t actually repair a car, it only describes the process to do so, but an algorithm IS A PROCESS. Additionally you said that copyright doesn’t protect ideas, but patents don’t, or shouldn’t either. You can memorize or improvise a process for repairing a car, but in order to run an algorithm on a computer you must have a copy of it, and since the algorithm IS THE PROCESS, you must have the process as well. In terms of software, the process is only allowed to go where copies of the algorithm go. There is no way to run a process on a computer without having a copy of it.

    “So, given that premise, which neither you nor I can change, do you prefer free-range copying of algorithms or patents to protect their inventors?”

    I’m not sure exactly what you are asking me so I apologize and will do my best to answer your question. Obviously I realize that what I describe is not the world we live in. I am advocating change. In terms of dealing with the world the way it is then there really isn’t any choice but to deal with the patent system. I feel that the patent system does a poor job of doing something the copyright system could do very well, at least in the specific case of software, and only because the algorithms and processes are inseparable.

    I think that given the nature of algorithms and software, moving to copyright protection would offer several benefits. For starters, you wouldn’t have to file for a patent because the second you type up your algorithm, it is instantly protected. Registered copyrights, unlike patent claims, would actually be readable and usable. Disputes over violations could be easily and objectively resolved.

    I cannot think of a situation where a valid software patent could be violated without implementing it as an algorithm. A more generic process that happens to be able to be implemented as an algorithm is a different story, but purely software related processes only exist as algorithms. If two algorithms are the same process, then they must be the same algorithm.

    A fun, useful, and often times tricky thing to do in Boolean algebra is to re-factor expressions in order to simplify them. Sometimes a really long expression simplifies to a single variable. It may be hard at times to figure out how to turn one into the other, but there are rules for doing so, and if they are truly equal then they can be re-factored until they are syntactically equal, because they are the equal.

    There is no good reason to treat an algorithm written in C++ differently than an algorithm written in Pascal if they are equal. You might have trouble seeing how to change one into the other, but if they are equal, then it can be done.

  28. Richard December 29, 2009 7:43 am

    “the Wright brothers and so many other great inventors also had a business sense about them.”

    The Wright brothers are a good demonstration that the patent system is a complete disaster for everyone outside the legal profession.

    Their patent dispute with Curtis arguably killed one of them and took the US from world leadership in aviation in 1904 to the point in 1917 where there were no US aircraft suitable for the war and it was necessary to buy from the French.

    If you want to cripple your economy then expanding the patent system is a good way to do it.

    The problems of s/w patents just provide an easy demonstration of the fundamental flaw of the entire patent system.

  29. Gene Quinn December 29, 2009 12:26 pm


    America is a great country. Even those who are wrong and know nothing about what they are talking about still have the ability to express their views and prove they don’t know what they are talking about.

    You are, of course, wrong. Every country without a strong patent system has little or no economic activity, few jobs and that is a disaster for people living in such backwards countries.

    I see from your email address you are in the UK. You should know there are few software companies in the UK and while the UK used to be leaders in pharma and biotech those days are long over due to other countries like the US proving far greater climate for such businesses. Of course, you won’t understand what I am talking about because your hatred of patents prevents you from seeing the true economic consequences if what you wish.


  30. Mike October 14, 2011 12:57 am

    I found this to be an interesting article, bu I have to disagree with your stance on software patents. I myself am also of the belief that true innovation needs legal protection. The problem, however, exists in a manner not very different from the problem you outlined in your article. They are patenting methods of problem solving that are already being used. These things being patented are often so obvious to those of us educated in the subject that it is laughable.

    A good way to look at the software patent problem is to apply it to music. Let’s say I own the following patent.

    A System and Method for Keeping Time and Creating Rhythm in Music Through Usage of the Feet and Hands in Parallel.

    I am now at liberty to sue anyone and everyone who does not pay me for the right to have a drummer in their band. What is happening in the software world is that they are taking very abstract concepts, often without any development on their part, and filing lawsuits with the aim of settling for less than what it would cost to fight the suit.

    There is also another way to look at it. It is already part of the patent review process that mathematical processes are unpatentable. Anything that can be done by a computer can also be done with a s/pencil/few thousand pencils/ and a s/sheet/couple million sheets/ of paper.

    Companies deserve to protect their product, but the system has created an entirely new industry that only serves to suck money out of the hands of hard-working Americans.