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.

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.

-Gene

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.

“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.

” 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?

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.

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.

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.