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Praying the Supremes Get Bilski Right in 2010


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: January 5, 2010 @ 6:45 pm
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Yesterday I published my Patent Wishes for 2010.  Those things identified were largely industry wide wishes or desires and did not focus on any particular category or classification of invention.  I wrote about how the monstrosity of an obviousness test we are hobbled with thanks to the Supreme Court’s KSR decision must be changed and how Congress needs to take their head out of the sand and fund the Patent Office adequately.  These and the other things I wrote about would benefit the patent system as a whole and assist the Patent Office in streamlining the patent process, which benefits everyone.

Notwithstanding, there were a few things I purposefully did not include in my 2010 wishes.  The word “wish” does not really capture the essence or depth of the magnitude of the desire I have for a few certain, industry specific events that will take place at some point during 2010.  So rather than “wish” for certain things I thought it might be appropriate to beg for them instead.  Thus, I beseechingly request the following: (1) a decision from the Supreme Court in Bilski that does no damage; and (2) an end to the nonsense surrounding gene patents and biologics.  I also wish with the utmost urgency that the City of Alexandria stop issuing parking tickets after hours.  After attending the USPTO Inventors Conference I  received a parking ticket at 8:27 pm, while parked at a meter requiring payment only until 5 pm.  I challenged, and lost, which cost me an extra $10.  Go figure!

1. Bilski — Supreme Court vs. Patent Law

About two months ago the United States Supreme Court heard oral arguments in Bilski v. Kappos, which relates to patentable subject matter; namely what should be allowed to be patented in the United States, and more specifically to whether business methods are patentable if they satisfy the other patentability requirements.  My hope is that the decision in the case, which is likely to be released during the Spring of 2010, does not turn out to be Supreme Court vs. Patent Law et al, where et al is the US economy.

In Bilski the inventor essentially came up with a mental process akin to looking at information, synthesizing the information and acting.  Such a method has been referred to, and probably rightly so, as a pure business method.  Business methods have been vilified in the popular press, across the Internet and in Congress where some Members of Congress have sought to kill them all together, but have failed time after time.

It is not at all an overstatement to say the fate of future innovation in the US rests squarely on the Supreme Court getting the Bilski ruling correct.  Long ago the manufacturing jobs started leaving and they are gone and not coming back.  To the extent that the US has anything other than a service economy it is thanks to intellectual property and intangible assets, and everyone who seriously considers the matter knows that the chief intangible asset for businesses is software.  Just take a look at the technology sector and the companies in that space and you can’t help but notice that the major employers in the US all have one thing in common — they use, create and exploit software.  Erase software patent protections and hundreds of thousands of jobs will be erased from the economy and investment dollars will go elsewhere.

But what does software have to do with a business method case?  Exactly!  Unfortunately, the Federal Circuit didn’t understand that and issued the CAFC decision in Bilski that calls into question the patentability of software, as well as the patentability of medical processes, diagnostic processes and therapeutic treatments. So in order to kill pure business methods the Federal Circuit shot at and killed much more.  In truth, what the Federal Circuit did was akin to pulling out an elephant gun to shot a fly.  There has been and will continue to be enormous collateral damage unless and until the Federal Circuit Bilski debacle is fixed.

Luckily, the Supreme Court has almost always erred on the side of an expansive view of what is patentable subject matter, and that is why in the United States we can patent living matter, such as a genetically modified bacterium, business methods and software.  The US economy would be dramatically different today if we did not have an expansive view of patentable subject matter.  It is no coincidence that the US dominates in software, biotechnology, pharmaceutical and many other industries, and such dominance is owed to our strong patent policies that foster innovation and entice investors to part with much needed capital to fund research, development and company building.

The cause for concern is that in the few instances where the Supreme Court has not had an expansive view of patentable subject matter the technology in question was computer processes, also known as software.  So will the Supreme Court cut off avenues of endeavor and potentially unborn industries that could spawn from never before considered technological
advances?  We would be kidding ourselves if we didn’t acknowledge that such lunacy is definitely a possibility.  At times the Supreme Court has shrugged off methods and processes as “only” relating to a computer.  Given that software is the new engine that drives much technology advances today a death blow to software would no doubt slow the march of innovation and severely damage the US economy.  To see the impact you merely have to look at the patent portfolios of such large companies who employ many thousands like Microsoft, IBM, Intel and others.  Lost value, the inability to protect inventions and the ensuing disaster is guaranteed to lead to massive numbers of job losses and would kill whatever recovery we could otherwise have in 2010!

The truth is that whatever the Supreme Court rules software will remain patentable, we just won’t be able to call it software.  We will have to act like the machine is what is new, not the directions given to the machine.  There will be tremendous opportunities for those who get to define their inventions moving forward, adhering to the restrictive dictates of Bilski will be expensive, but we know the target and patent attorneys are definitely resourceful.  But more than a decade of patents and still pending patent applications will be compromised with a negative Bilski decision from the Supreme Court, and there is just no reason to casually erase trillions of dollars of value when that value was obtained and property defined based on a set, certain and stable set of rules.  Make changes moving forward if you like, but changing the rules in the middle of the game is nothing more than cheating.

I am begging, praying, pleading.  I am throwing salt over my shoulder, rubbing lucky rabbits feet (which admittedly weren’t so lucky for the rabbit), making sure I don’t walk under ladders, not stepping on cracks, avoiding cats in general and specifically staying away from black cats.  Wishing for a decision in Bilski that doesn’t do harm is simply not enough!  There is far too much at stake.

Up next… pleading for an end to the nonsense surrounding gene patents and biologics.

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Posted in: Bilski, Computers, Gene Quinn, IP News, IPWatchdog.com Articles, Patents, US Supreme Court

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

224 comments
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  1. Gene,

    Asking for SCOTUS to rule “reasonably” in Bilski and not create “collateral damage” on patenting software/computer programs may truly be a “wish and a prayer.” Like my patent attorney brother, I’ve got no confidence that SCOTUS does anything right in the patent area. As you correctly point out, KSR International has created significant “collateral damage” in determining obviousness under 35 USC 103. And SCOTUS has shown in Gottshalk v. Benson and Parker v. Flook they’re clueless about the “collateral damage” they’ve created in trying to patent software/computer programs. We can only hope they’ll do a Diamond v. Diehr and not make the situation for patenting software/computer programs worse.

  2. Gene,

    Amen to your point about “potentially unborn industries”. Our economy is changing and patents need to change along with it.

  3. EG-

    I agree with you. The best we can realistically hope for is the situation not getting worse. I do think it is pretty clear that the Supremes will do something different, and likely substantially different. So it will either get much better or it will get much worse. Praying may not make it any better, but might make us feel better in the meantime!

    Stay well.

    -Gene

  4. As an experienced software engineer and relatively prolific entrepreneur I couldn’t disagree more strongly with your view on software patents. I have seen first hand how they’ve permitted an industry of “patent parasites” to thrive, who do nothing other than acquire questionable software patents (they are all questionable so far as I’m concerned, and I’ll explain why later), and then extort money from the companies doing the actual innovation under threat of litigation.

    Less egregious, but also damaging, are the way software patents are used by companies as a substitute for actual competition in the market, such as Nokia’s recent suit against Apple. Having failed to out-innovate the iPhone, they resort to the court room, its pathetic.

    So why do I believe that all software patents are questionable? Let’s go back to basics. The purpose of patent law in the US is (quoting the constitution) “to promote the progress of science and useful arts”. Patents promote progress in software IF AND ONLY IF there are software innovations that would not have occurred were it not for the promise of reward of a patent.

    Take it from me, I am not aware of a single useful innovation in software that meets this criteria. Patents are invariably filed more as an afterthought, or as a bonus, but I am not aware of a single case where the innovation would not have occurred were it not for the possibility of patenting it. I challenge you to contradict me with specific examples of useful software innovations that would not have occurred were it not for the availability of software patents.

    There is further evidence, look at the rapid innovation in software in the 1970s and 1980s. It was during these decades that the operating system, the Internet, the world wide web, all these emblems of modernity in 2010 were created, and all without the protection of software patents. It was at the end of this period that Bill Gates said “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today”.

    Gates was right, how fortunate for our industry that it was free from software patents during its formative years, yet how much further might we have progressed by now had we been free of software patents for the last two decades too? Quite a bit, I suspect.

    Lawyers calling for broader patent protection remind me of arms dealers calling for more wars. Great for them, sure, but bad for innovation and everyone else.

    If software patents did what their advocates claimed, people like me would be the first to champion them, since we’d be the beneficiaries. As someone on the front lines, I look forward to the day when I can innovate without having to worry about being dragged into the court room by a parasitic patent troll, or a competitor who can’t beat me in the marketplace.

  5. “Just take a look at the technology sector and the companies in that space and you can’t help but notice that the major employers in the US all have one thing in common — they use, create and exploit software. Erase software patent protections and hundreds of thousands of jobs will be erased from the economy and investment dollars will go elsewhere.”

    Where do you get this nonsense from? Software patents protect people who license software, but the backbone and vast majority of programming jobs are for writing in house software which isn’t really affected by patents one way or another. Actually, those programs are probably benefited more by removing patents since the in house programmers wouldn’t have to re-invent the wheel as much to do their jobs.

    Just take a look at Qt, the former Trolltech company now owned by Nokia. Qt is an amazing software library used in lots of devices and programs. The secret there is that companies like Nokia needed that software anyways and buying Trolltech was just a means to that end. By allowing the Qt people to give their software away for free and then accept improvements back into it, they actually save money because other people are essentially doing work they were going to have to pay for anyways. Instead of paying a bunch of in house programmers to write them custom software they now own a self-sustaining company (thanks to service contracts) that provides the bulk of their software needs for them. Even if they weren’t selling service contracts they would have had to pay those programmers anyways. Admittedly this is a copyright issue and not a patent issue, but the idea still applies. Less restrictions on software is what saved them money, not more.

    “To see the impact you merely have to look at the patent portfolios of such large companies who employ many thousands like Microsoft, IBM, Intel and others. Lost value, the inability to protect inventions and the ensuing disaster is guaranteed to lead to massive numbers of job losses and would kill whatever recovery we could otherwise have in 2010!”

    Give me a break. Those are also the same companies sending all the jobs to India and firing Americans to fill their positions with guest workers for 2/3rds the cost so we can enjoy such gems as Microsoft Windows and Internet Explorer. Let’s not forget that Microsoft stole almost every useful invention they ever had as well. Bill Gates bought DOS off somebody else, they stole the mouse from Xerox (although Xerox practically gave it away), they stole the idea for windows, they are getting sued for XML violations right now and unless they pony up some serious cash they will have to stop selling certain versions of Office. They got caught using GPL code in Windows 7.

    Quite frankly, Microsoft is a terrible company that produces terrible products and needs to die. Microsoft’s entire business model is based on monopolies and patents and not quality products. They constantly stomp on competition and keep superior products from reaching the mainstream and start-ups from getting a fair chance to make it. This idea that they are champions of our economy and need to be preserved is about as far out of whack as the idea of small town American and Wal-mart killing all the mom and pop stores.

    “But more than a decade of patents and still pending patent applications will be compromised with a negative Bilski decision from the Supreme Court, and there is just no reason to casually erase trillions of dollars of value when that value was obtained and property defined based on a set, certain and stable set of rules.”

    I suppose we shouldn’t have freed the slaves or given women the right to vote either; those things required significant reform of government systems as well? The idea that it will inconvenience a bunch of existing patents, which probably should exist under changed rules anyways, and forcing people to refile patent applications as too much of a hassle is a pretty weak argument indeed. Let’s stick with the status quo because change is hard to do. At least you admit that all the layers are going to do is reword things so they slip through the cracks again.

  6. POP-

    The problem with you and your comments about patents are you know absolutely nothing about the topic, and that leads you to make ridiculous statements. You seem to relish your ignorance.

    For example, you say: “The idea that it will inconvenience a bunch of existing patents, which probably should exist under changed rules anyways, and forcing people to refile patent applications as too much of a hassle is a pretty weak argument indeed.”

    You cannot refile patent applications! So while you think you know everything it is apparent that you know nothing, but have no problem forming opinions nonetheless. The law cannot change the rules in mid course, period. People who followed the law will have their investment destroyed and there is nothing they can do about it. So even though software patents will continue to exist, regardless of what you or anyone else thinks, what will happen is a decade of people and businesses who followed the law will have all value erased. They cannot refile, amend patents, amend patent applications and make the modest changes that would result in patents that are valid and can be issued. That is ridiculous.

    As far as your nonsense about slaves, give me a break. You will not pull me into your melodramatic life.

    As far as your view of the technology world, you are wrong. Sadly, no amount of prove will educate you because you think you know everything.

    -Gene

  7. Gene,

    “The law cannot change the rules in mid course, period.”

    This happens all the time! The law changes every time your city, state, or country passes a new law. It changes every time a court sets a new precedent. The only way to avoid changing the rules would be if our government never passed a new law, and our courts never questioned a past precedent.

    Sure, it is legitimate to try to avoid disrupting industry by changing laws, but this alone is not sufficient justification to keep a bad law in place. Pop was right, one of the arguments against abolition of slavery was the economic disruption it would cause, that was essentially the reason for the civil war. At the time, Lincoln believed that the injustice greatly outweighed the disruption that would be caused.

    A sudden tightening of patent scope may be disruptive, but the current wide availability of patents is itself highly disruptive to innovation on an ongoing basis. Software patents should be banned, people will adapt, and the world will be a better more innovative place.

  8. I see that the blind have started to respond. the thunder of the herd following the anti-patent, anti-software mantra begins.

    By the way Ian, there is no asterisk in the Constitution next to PROMOTE that says IF AND ONLY IF.

    By the way pop, do you mean startups like i4i?

    Where can I set up my Kool-aid stand? I can make a mint with people like pop and Ian.

  9. blind dogma,

    I see the level of discourse on this blog is pretty low, at least where you are concerned.

    Its telling that software people (you know, the people that actually *understand* software) are immediately attacked in an ad hominem manner here when they criticize software patents. Such childishness only confirms my (already quite low) opinion of those that see nothing wrong the software patent extortion industry, I assume because they are beneficiaries of it.

    As for your assertion that congress can just ignore the limitations on its legislative power expressed in the constitution when it feels like it, I think you need to go back to an elementary school civics class. Why would the constitution enumerate the legislative powers of congress if congress could then just invent new powers when it wants to?

    More to the point, if you concede my assertion that there are no software innovations that would not have occurred were it not for the promise of reward of a patent, what conceivable moral or constitutional justification is there for software patents?

    Or perhaps all you are capable of is throwing around childish insults.

  10. Ian-

    Perhaps you are bringing down the level of discourse on this blog. If you don’t like it you are free to not read, not comment and never return.

    The fact that you have a low opinion of those who know software patents are necessary is very refreshing and proves that we are on the right path.

    Your understanding of the constitution and civics is wanting, and your logic self-serving. You, like all others who don’t like software patents profess your beliefs because you would be the beneficiary of no software patents, so for you to throw stones at us for taking positions you assume are self serving is like the pot calling the kettle black. What anti-software patent advocates want is for others to do the heavy lifting and for them to copy, take and steal whatever they want. You don’t want to operate in a business manner, follow any norms and think everything should be free. I really feel sorry for you and those who think like you. Rather than seeing opportunity you are bitter and want others to be forced to adhere to your world view. Thankfully, that is not what the law requires and not what the Constitution fosters.

    -Gene

  11. Ian,

    And as I can se – you like so many of your anti-patent brethern are quick to jump to errant assumptions. As put by others on this blog (in case you actually are interested in reading), I have feet in more than one worlds. I have a foot in the tech world and do understand software (and the business of software) and well as a foot in the legal world and understand patents. You, obviously do not, yet feel so strongly about your opinion that you want to spout on patent law. Most intelligent people do not like to spout so conclusively on areas that they are ignorant about. As for “ad hominem”, I call them like I see them. Prove me wrong by actually understanding patents before you condemn them. My comments may be insulting to you, but they are not based in ignorance.

    As to Congress and ignoring (or is that ignorance), it is not I who added meaning to PROMOTE that is not in the Constitution – (that would be you).

    Your assertions are baseless and merely swallowing of the propaganda that you have been fed. I love how people like you and pop hate Microsoft, yet do not realize that you drink their dogma., and spew the anti-patent rhetoric without truly understanding what in means in both the legal and technical worlds.

  12. -Gene

    “What anti-software patent advocates want is for others to do the heavy lifting and for them to copy, take and steal whatever they want. You don’t want to operate in a business manner, follow any norms and think everything should be free.”

    I’m sure you can find some people like that, but that statement is hardly representative of the majority of anti-software patent advocates. The FSF, which is too nutty and fringe for my tastes doesn’t even live up to that because they live in their own world and in their opinion are just trying to be left alone. In fact, that is what most of us want, to be left alone. I don’t write software by going out and copying what other people have already done. That kind of work is boring and not very profitable anyways, regardless of patents.

    The situation most programmers run into is analogous to the show family feud, where at the end two people from the winning family have to guess the most popular answers to the same questions but the second person can’t give the same answer the first person did. The second person up isn’t stealing or copying the first person’s answer, they just happen to think of an answer to a question that is quite obvious to most people and so it ends up being the same answer sometimes.

    I’m not for completely abolishing software patents if they could just get the system to work the way it is supposed to. Most software patents should be thrown out under obviousness tests in my opinion. The fact that programmers keep coming up with the same solutions over and over again ought to be a clue that it isn’t that special. I’m actually writing some non-free software I (hopefully) plan on selling when I finish it and since I’m not copying or stealing from anybody that I know of, certainly not the source code, I’d like to be able to do so without getting sued over a violation of one of the googleplex of software patents lurking out there.

    You said that it isn’t possible to re-submit a patent request, and that is probably the rule, but they aren’t supposed to issue more than one patent for the same thing either and that happens all the time. I would be willing to be you could find a patent, carefully rewrite it so it covers the same thing, submit it, and probably get it through. It might get thrown out later, but then again maybe it won’t. Even yet to be determined invalid patents are still powerful weapons of fear that can cause people to settle out of court, shut down their businesses, or pay licensing fees they should have to pay.

  13. Gene,

    I’m well aware that I’m reading and responding to this blog voluntarily. I thought I might have an intelligent discussion about this issue here, but its clear that you are a pro-patent zealot, completely entrenched in your view.

    “You, like all others who don’t like software patents profess your beliefs because you would be the beneficiary of no software patents”

    You are right. As someone who actually innovates in software, I would benefit from no software patents, as would anyone else who innovates in software, along with the public who benefit from this innovation.

    Your interests are not aligned with innovators, trust me, I am one. As I said before, you are like the arms dealer rubbing his hands in glee at the prospect of more conflict, because whoever wins, you profit, and innovators lose.

    “for you to throw stones at us for taking positions you assume are self serving is like the pot calling the kettle black”

    My position does help me, but it helps me because it helps innovators and I am an innovator. My position happens to be aligned with the public interest, your’s is not. You benefit from more litigation, more patents, damn the consequences for society.

    “What anti-software patent advocates want is for others to do the heavy lifting and for them to copy, take and steal whatever they want.”

    This statement demonstrates such ignorance of how software is written that I almost don’t know how to respond. I simply can’t relate to someone that has such a warped world view. I can only assume its the view of someone that fundamentally doesn’t understand creativity, who doesn’t understand innovation. I guess it makes sense in a way, law school isn’t exactly top of the list of places to go if you are creative.

    “You don’t want to operate in a business manner, follow any norms and think everything should be free”

    More ad hominem.

    I’ve founded and run several businesses, raising over $15M in venture capital over the years, and currently run a profitable software business. If I thought everything should be free, I doubt investors would have been willing to give me a cent, now would they? I sell my software, but I rely on copyright and trade secrets to protect it.

    How much venture capital have you raised for your software ideas? How many software businesses have you created? Nothing I suspect. Only someone profoundly ignorant of how creativity and innovation works could say the things you say.

    Of course, knowing that your livelihood depends on software patents, I really don’t expect to change your mind. Even if my argument was persuasive, you could never admit it.

  14. blind dogma,

    Since your last statement offers only more childish questioning of my understanding, without pointing out any specific error in what I’ve said, you really haven’t given me anything to respond to.

    Since you claim to have a foot in both worlds, perhaps you could share your resume so that I can see what widely used innovations you’ve developed. I’m sure you’ve done far more to advance the state of the art than software patent critics like me.

    On the issue of my understanding of software patents, you should know that I’ve been immersed in the issue of software patents for quite some time, longer than some patent lawyers I’m sure. I’ve travelled to Brussels to discuss the issue with EU legislators (who rejected software patents), and I’ve even participated in a formal debate with law professors that advocated software patents. The debate was with Prof Martin J. Adelman on March 15th, 2005, and was organized by ScotlandIS. At the end of the debate, which included two CEOs of software companies that didn’t already have an opinion of software patents, both agreed that they would be better off without them.

    Unlike you, I’m using my real name here – so if you doubt anything I’ve said you are welcome to confirm it with a Google search.

    But even if we accept your assumption that I know nothing about software patents, I’m not the only one that questions them. For example, Lawrence Lessig, a professor of law at Harvard Law School, has spoken extensively on the damage caused by software patents. But I guess you think he is ignorant too. I know which of you I’d side with.

    So while you are welcome to condescend to me about my understanding of software patents, you’re only revealing your inability to have a proper debate on the subject.

    Ian.

    PS. where did I say I hated Microsoft? Please stop making completely unfounded assumptions about my opinions.

  15. Ian-

    If you are against software patents you are not an innovator. Innovators want patents, those who do not innovate and copy others do not want patents. If you were an innovator you would either want patents or not care about others getting patents. So you can spare me the sob story, and you an save the intellectually dishonest statements.

    Do you even know what the term “ad hominem” means? It seems as if your working knowledge of what that means is lacking.

    I would love to know who the investors are that are willing to provide funding for a software business that relies on trade secrets and copyrights. Naive investors like that would certainly be interested in companies with real protections. Simply stated, software cannot be adequately protected with copyrights, which I am sure you know or you should know. Likewise, trade secrets do not offer much, if any, protection for software. If the software is released the trade secret would be lost because anyone can get to the code.

    I may be many things, but profoundly ignorant is not among them. Anyone with experience in the industry knows what you are saying is completely wrong and displays no understanding of the real world. Thus, we can all tell you are not being honest and simply puffing.

    My livelihood does not depend on software patents. If software patents vanished tomorrow I would not lose a single penny. If your arguments were persuasive I would admit it, and everyone reading knows that. The trouble is you don’t make persuasive arguments, you do not understand the law and you are an unsophisticated business person. Your hatred of software patents will eventually catch up with you, and you will be a target. Your investors will lose because of your failure to act responsibly and insulate yourself from those with patents.

    -Gene

  16. Ah, a healthy and vibrant response – thanks Ian.

    There is a reason for my anonymity, and sharing my resume would defeat that reason, so – no resume for you (look on the bright side – soup for you).

    As to understanding software patents – you make the mistake of thinking that being ardently opposed is equivalent to understanding them. If you understood them, your ardent opposition would not be so ardent. The fact that you have spoken at some length against them proves only your commitment to not liking them, rather than any showing of understanding. You say I have not provided any specific error but I have – twice now alluding to your Constitutional error regarding PROMOTE – your dogma blinds you still.

    I do not know of Professor Lessig, and have not seen any of his writings – but if he wrote as you did above then I would call him out just the same, as even professors of law are known to make errors – in the US, in fact, some professors are known to make HUGE errors – Lemley comes to mind. The Ivory Tower provices no automatic street cred.

    As to a proper debate – how do you propose to have a proper debate if you knowingly admit that you don’t know about the patent world, especially given your pedigree of anti-patent fervor? Are you going to dogma me to death?

  17. PS – about Microsoft – while the comment was more directed to pops, I included you because the anti-patent rhetoric finds a source in Microsoft, who is savvy (mercenary?) enough to try to tear the system down and use the system at the same time. It’s ironic how so many people who are anti-Microsoft buy blindly into their spiel. Your stand may be independent, but it has the same ring.

  18. Dear Ian,

    Being that you are an “experienced software engineer and relatively prolific entrepreneur”, you no doubt understand that getting the kernel wrong means everything built upon it will be wrong.

    The kernel of your understanding about patent law appears to be the following: “Let’s go back to basics. The purpose of patent law in the US is (quoting the [USA] Constitution) “to promote the progress of science and useful arts”.”

    I am of course quoting from your comment #4 above, namely at http://www.ipwatchdog.com/2010/01/05/praying-the-supremes-get-bilski-right-in-2010/id=8233/#comment-10142

    Then you say in comment #4: “Patents promote progress in software IF AND ONLY IF there are software innovations that would not have occurred were it not for the promise of reward of a patent.”

    From this second statement it becomes clear to us patent practitioners that you miss-appreciate the meaning of the word “promote”.

    Promote does not mean “to cause”. The Founding Fathers who wrote Article 1, section 8, clause 8 into the US Constitution were not so naive as to believe that patents “cause” inventions to happen in the first place. Britain already had a patent system. The Yankee rebels knew how patents work. James Watt, for example, developed his improved steam engine with the help of the British patent system and that improvement launched the whole Industrial Age thing back in old England. (Time lines may be a bit skewed here with the Watt example visa vie the time that the US Constitution got written. Other inventors in Britain got similar benefits from the British system at earlier times. Watt is just a well known example.)

    So. No. The word “promote” does not mean to cause but rather it means to accelerate, to graduate to a whole next level. The patent system sets up a race. Only one of iPhone and Google phone is going to get to the finish line first. And whoever does it with the next “big thing” (the next killer app) will get the patent for it; even though both contestants may have “independently” developed. In a foot race, every runner “independently” develops his own speed. But only one takes the winner’s tape.

    If you have that as your model of how the patent system is supposed to work, you will better understand some of its basics.

    Cheers. :-)

  19. -Blind Dogma

    “PS – about Microsoft – while the comment was more directed to pops, I included you because the anti-patent rhetoric finds a source in Microsoft, who is savvy (mercenary?) enough to try to tear the system down and use the system at the same time. It’s ironic how so many people who are anti-Microsoft buy blindly into their spiel. Your stand may be independent, but it has the same ring.”

    I have no idea what that is even supposed to mean. If you are implying that most of us talk the talk but don’t walk the walk then you are wrong when it comes to me, at least. I use Linux at home and I convert as many people over to it as possible. It has it’s flaws and I’m not a ragging fan boy, but the problems it has are a lot better than the ones Windows does. Their OS sucks, so I don’t use it, their browser sucks, so I don’t use it. Their office suite is nice but overpriced and doesn’t support open file formats, so I don’t use it, their programming tools are nice but they cater only to the Windows developer and I’m not in the market for that, so I don’t use them. I use Microsoft at work because I don’t have a choice, but believe me, I walk the walk.

    I’m not sure what the “blindly buy[ing] into their spiel” bit is about. I don’t mind answering your charges but you’ll have to clarify them for me.

    P.S -Gene

    Is there any way to up the timeout for the CAPTCHA code? I almost always have to refresh and copy and paste to avoid it?

  20. Picking up on what Step says, there is not requirement that a single invention promote the progress in order to obtain a patent. In fact, an inferior solution that is new and unique can be patented. The system is set up to promote the progress as a whole, and it does exactly that.

    -Gene

  21. “If you are against software patents you are not an innovator. Innovators want patents, those who do not innovate and copy others do not want patents.”

    Are you serious? This is such a ludicrous statement that if this wasn’t your blog I’d accuse you of trolling. Wow, I can’t believe you’d say something so ridiculous in a public forum and attach your name to it! Do your clients read this blog? I’d run a mile if I was thinking of hiring you and I saw a moronic statement like that. People really trust you to give them advice on patents? Wow, scary.

    Innovators are people who innovate, look it up in a dictionary. I innovate, therefore I’m an innovator. I know I am because I have a track record of innovation. Like you I’m posting under my own name. Google me and then try to tell me with a straight face that I’m not an innovator.

    Given that I am an innovator, as are many other people that dislike software patents, you are demonstrably wrong.

    This is why, for example, large companies like to enter cross-licensing deals. Its a truce, because they view patents as weapons, and they are happy to sacrifice the ability to sue if it means they don’t have to worry about getting sued.

    The very existence of cross-licensing agreements demonstrate that for those companies, patents are viewed far more as a threat than as a motivation to innovate.

    “I would love to know who the investors are that are willing to provide funding for a software business that relies on trade secrets and copyright”

    Sure, my investors have included:

    Austin Ventures, Bessemer Venture Partners, Draper Fisher Jurvetson, Intel Capital, Kline Hawkes, Comcast, Turner Broadcasting, and a few smaller angel investors.

    As you can see, they are some of the top venture capitalists in the country.

    “Simply stated, software cannot be adequately protected with copyrights, which I am sure you know or you should know”

    You are wrong, and history proves it. Many companies have built extremely successful businesses based on copyright alone. In fact, any computer software business including Microsoft did perfectly fine in the 70s and 80s before the patenting of software became popular.

    “Likewise, trade secrets do not offer much, if any, protection for software. If the software is released the trade secret would be lost because anyone can get to the code.”

    I’m not sure how much experience you have with reverse engineering, but I have quite a bit. Determining how a complex algorithm works by reverse engineering object code (look it up) is extremely difficult. I will happily send you a copy of the object code for my software, and will pay you $100 if you can find someone who can reverse engineer it and tell me how the core algorithm works.

    “Your hatred of software patents will eventually catch up with you, and you will be a target. Your investors will lose because of your failure to act responsibly and insulate yourself from those with patents.”

    Ah, the argument of an arms dealer.

    So on the one hand you argue how great software patents are, and on the other hand you argue that they are a threat to me, an innovator?! I’m almost redundant in this discussion, you’re demonstrating the idiocy of your position all by yourself!

    Please explain to me how a software patent insulates me against getting sued by a patent licensing company that does not itself create software. It doesn’t matter how many patents I have, they’ll never infringe any of them if they don’t create anything!

    Irony of ironies, you’re only safe from patents if you make damn sure you DON’T innovate! And they are supposed to promote innovation? Its insanity.

  22. Step, we call that a strawman argument. I never said that the words “promote” and “cause” were the same, but certainly they are similar, indeed if something causes something, then it also promotes it.

    Please try to argue against my actual statements, and be specific, we’ll have more hope of making progress that way.

  23. Blind,

    “you make the mistake of thinking that being ardently opposed is equivalent to understanding them”

    No, you might understand them perfectly but profit from the chaos they create, and not care about the harm they do to innovation.

    “The fact that you have spoken at some length against them proves only your commitment to not liking them, rather than any showing of understanding. ”

    I haven’t only spoken at length against them, I have spoken PERSUASIVELY at length against them. I was part of the group that fought and won the battle against software patents in Europe. As I mentioned, I also persuaded both software CEOs in the audience of the debate I mentioned.

    “You say I have not provided any specific error but I have – twice now alluding to your Constitutional error regarding PROMOTE – your dogma blinds you still.”

    Perhaps you should be explicit then, rather than merely alluding – since you’ve advanced no axiom that contradicts anything I’ve said.

    “I do not know of Professor Lessig, and have not seen any of his writings – but if he wrote as you did above then I would call him out just the same, as even professors of law are known to make errors – in the US, in fact, some professors are known to make HUGE errors – Lemley comes to mind. The Ivory Tower provices no automatic street cred.”

    You are right, it doesn’t – but it was you that resorted to an ivory tower argument when you questioned my understanding of software patents. I’m glad you now acknowledge that your argument was a fallacy.

    “how do you propose to have a proper debate if you knowingly admit that you don’t know about the patent world”

    When exactly did I say that I don’t know about the patent world? I know plenty about it, I’ve seen the harm software patents do first hand.

    “Are you going to dogma me to death?”

    I don’t think you know what that word means, but you sure enjoy using it!

  24. Gene, in response to:

    “Picking up on what Step says, there is not requirement that a single invention promote the progress in order to obtain a patent. In fact, an inferior solution that is new and unique can be patented. The system is set up to promote the progress as a whole, and it does exactly that.”

    Your logic is faulty. Your statement may be valid if I had demanded that you demonstrate that patents promoted innovation for every single patent that was granted, but I didn’t. I asked you to find me JUST ONE patent whose creation was caused, or even just promoted by patent law. Just a single one, surely that can’t be too hard, now can it?

  25. I believe someone (I assume Gene) deleted one of my comments. I’m not going to participate in a debate where my opponent silently censors me. Goodbye.

  26. I could be wrong but I don’t see any of his missing. Either way, he still has like half of all the comments on this article and he is screaming about censorship?

    I have noticed a few times that I would post a comment that would never show up and when I tried to repost it I would get a message saying that I had already “said that”. I’m not sure if it is just a bug in the system or moderators weeding it out. I would rather believe it was censorship and not bad software screwing up the comments.

    This is Gene’s blog and he has the right to decide which comments to display and which ones not. As long as he isn’t modifying comments to distort people’s words then I don’t really care. He has a right to protect himself from slander. After all this is his professional blog.

  27. “advanced no axiom that contradicts anything I’ve said.” – Ian, please – leave out the semantics when playing with lawyers. Just because I am not explicit in my third reply to you on the idea of PROMOTE (which Step very nicely picks up and adds to – thank you Step), I did point out, axiomatically or not, that your IF AND ONLY IF is a footnote-type addition to the actual Constitution.

    As for the deletion of comments – it happens to all of us – don’t be so paranoid. Try what I do – I type my comments in Word so that if the paste in or Gotcha Code misfires (which it will do), I haven’t lost the pearls of my wisdom that I want to share with you.

  28. pop,

    I wrote a long response to Gene’s post that begins with the (moronic) statement “If you are against software patents you are not an innovator”, that has vanished.

    The number of posts of mine on this topic is irrelevant, even a single deleted post is censorship and completely unacceptable.

    Anyway, I’m simply not going to waste another second of my time when my opponent can and will delete my comments on a whim, and is intellectually dishonest enough to do so.

    Ian.

  29. Goodbye Ian.

    Just for the record, I didn’t censor you. You used a word that caused your comment to go into spam. Perhaps you should refrain from profanity.

    As for your claims that what I said was ludicrous. Obviously not. Everyone knows that those who don’t want patents just want to copy the work of others. Copyists are not innovators, they are a drag on everyone. Free riders are not innovators. I know you understand that, and suspect that is why you are leaving, having been defeated by logic and rational arguments. Sorry if I hit too close to home. Sorry also that you couldn’t stand up to the debate and chose to run and make false allegations in the process. Not surprising though.

    -Gene

  30. Gene,

    I have no idea which word you consider profanity, I used no word that I wouldn’t be happy for my 5 year old child to hear (if I had one, which I don’t).

    “As for your claims that what I said was ludicrous. Obviously not. Everyone knows that those who don’t want patents just want to copy the work of others. Copyists are not innovators, they are a drag on everyone. Free riders are not innovators. I know you understand that, and suspect that is why you are leaving, having been defeated by logic and rational arguments. Sorry if I hit too close to home. Sorry also that you couldn’t stand up to the debate and chose to run and make false allegations in the process. Not surprising though.”

    Speaking of five year olds, you debate like one. Do you ever have to argue in court? Do you start your opening statement with something like “Judge, I should win because opposing council are stupid”?

    I accept that you didn’t deliberately censor my comment, I said I believed it was deleted – which is true, although automatic.

    Regardless I really see no point in continuing to debate with you because its like debating with a brick wall, you just repeat yourself over and over again, nothing I say seems to register.

  31. Social comments and analytics for this post…

    This post was mentioned on Twitter by ipwatchdog: Praying the Supremes Get Bilski Right in 2010 – I also wish Alexandria stop issuing parking tickets after hours. http://bit.ly/7zHTLM

  32. Ian-

    Did I ever argue in court? Yes, and I have never lost a motions hearing.

    I debate like a five year old. No. My positions are well informed, I set out my position and explain things like they are, but you know that. Your need to resort to name calling demonstrates to everyone interested and objective that I have won the debate. I merely pointed out that those who don’t like patents want to copy, which if you were honest you would have to acknowledge. If you don’t want to copy then why the problem with patents? Why would you care if you are an innovator who has no intention of copying or infringing? What you don’t like is I called you out and stated the obvious.

    Debating with me is like debating a brick wall? Interesting. Sounds like the pot calling the kettle black. What you are really saying, but don’t have the guts to say it, is “I am brilliant and the fact that Gene has not stood down and acknowledge my brilliance means he is a brick wall and incapable of recognizing my superiority.” The truth is you, like all anti-software patent advocates, are arrogant and not capable of standing up to real debate. You expect your ignorant views to be accepted and cannot handle it when they are questioned and exposed. The truth is what you are saying does register, it just doesn’t make sense and is uninformed. Everyone in the industry knows you are blowing smoke, or have unsophisticated investors who don’t understand intellectual property. By not pursuing patents on your true innovations you are recklessly choosing to put your business in an inferior position due to a philosophical opposition to patents. That is not sophisticated and is naive.

    -Gene

  33. POP-

    Thanks for standing up for me. While we disagree most of the time, I do enjoy the jousting, which I know gets heated. I suspect our personalities are quite similar and I would enjoy chatting over a beer sometime.

    My goal is also to get you to convert to the “dark” side!

    -Gene

  34. My issue with Bilsky and the anit-software patents crowd is that it is next to impossible to draw a principled distinction between what should be excluded from patentable subject matter and what should be included.

    Much of my practice over the past 10 years has involved computer-implemented inventions. Twenty years ago many of these inventions would have been reduced to hardwired circuitry in an integrated circuit or even on a board, primarily because memory and speed limitations would have made them infeasible to embody in firmware or software. I think everyone would agree that such circuitry would be patentable subject matter. Apply Moore’s law to both processors and memory, and over the course of ten years these inventions can now be implemented in software or firmware. You could still reduce them to logic circuitry, but what’s the point? It is cheaper and more flexible to leave them as hardware or firmware, and processors are fast enough that performance is adequate without hard-wiring them.

    Whether an invention constitutes patentable subject matter should not depend upon the level to which the logic is hard-wired. At the end of the day (or clock cycle), circuits, firmware, and software all do the same thing–they receive inputs, apply logic, and generate outputs. Design me a circuit, and I can code it into firmware or software. Or give me some firmware or software, and I can reduce it to logic circuitry (or at least I could have long ago . . . ). Excluding an invention from patentable subject matter just because it is embodied as software or firmware, rather than circuitry, makes no sense whatsoever.

    To be more tangible, take an example of an invention relating to a technique to improve image processing in a digital environment. It may make sense to implement the technique in hardwired circuitry in some environments, e.g., a digital camera, which have limited memory and power requirements. By contrast, the same technique may be implemented in software or firmware in a computer system environment, which is not limited by memory or power consumption.

    Moore’s law changed the form in which many inventions are implemented. Inventions which would have been hard-wired as circuitry 20 years ago can now be implemented as software or firmware. If someone can make a principled argument as to why a hard-wired circuit embodiment of the invention should constitute patentable subject matter, while the firmware and software embodiments should be excluded, I’m all ears–I haven’t heard one yet.

  35. Setting the record straight on censorship…

    1. I do censor people that are saying things that are incorrect and could be believed to be correct by those who are unknowledgeable. For that reason I have prevented commenting by some individuals, including someone who says he is a patent examiner. His advice to independent inventors was wrong and if followed would compromise rights irreparably in some cases. If that is censorship, I plead guilty. I also plead guilty to preventing comments by those who lie, which is why I don’t allow certain individuals to post who have lied about private communications we have had.

    2. If you include a link in your comment it goes into the spam filter and await moderation. As anyone can see, I have nothing against links and approve appropriate comments, but I will not tolerate spam commercial comments, which always have links. They are deleted, and the way to ensure they do not work their way in a comment with a single link needs to be approved before it goes live.

    3. If you use profanity the comment gets spammed. As we have learned over time any profane string will cause a comment to be spammed and require approval. As we have seen there are a good many words that start with the letters a s s and which are not profane. Nevertheless, that can and does cause comments to be held for moderation.

    -Gene

  36. “Everyone knows that those who don’t want patents just want to copy the work of others.”

    Wait, what?

    Does that mean that Trevithick (high-pressure steam engine) or Picado and Fleming (penicillin) were dirty thieves?

    Love the “everyone knows” there, by the way.

    “James Watt, for example, developed his improved steam engine with the help of the British patent system and that improvement launched the whole Industrial Age thing back in old England.”

    If anything, Watt’s patent held back the industrial revolution by at least a decade. Watt was, himself, inconvenienced by the same system. While his efforts pushed forward the state of the art, the efficiency of steam engines was about the same when his patent began as when it ended. It was only really with the development of high-pressure steam and the efforts of the Cornish mining engineers that steam power came into its own.

    The Watt patent is one of the go-to examples of how patents harm innovation. It’s actually quite surprising to me that someone would use it to defend said system.

    Both of the statements I quoted make me feel like I’m in Bizarro world.

  37. Gene,

    With all due respect, Ian Clarke has CLEANED YOUR CLOCKS, picked apart EVERY SINGLE CLAIM you have made, and COMPLETELY DESTROYED you.

    I really wish you had HALF the cognitive capacity and intellect that Ian has. Next time, try to do some research so that you may pick your battles before firing blanks.

  38. Old Timer,

    Gene, as well as a number of commentators here at IP W-Dog have done the same dance with many an anti-software patent guys before.

    This is nothing new.

    What you will often find is that the anti-software patent guys define the word “software” to mean a Turing-complete mathematical abstraction of the process. The word “software” has no definitive meaning. And thus we all dance like blind men around the proverbial elephant over and over again.

  39. Gene —

    Your arguments are so profoundly bizarre as to lead me to believe that you either are genuinely deluded, or you exist in a parallel universe in which black is white, up is down, and software patents promote innovation.

    I lack the patience to provide an actual coherent, logical argument, but given your own statements (“Everyone knows that those who don’t want patents just want to copy the work of others”), that seems to be par for the course.

  40. Kip-

    Thanks for the comment. Too bad you don’t have the time to impart wisdom. Of course, it is ironic that you had the time to post this comment but no time to provide a coherent, logical argument. Not a surprise at all. We all know that means you can’t make a coherent, logical argument.

    -Gene

  41. Rudd-0-

    Wow. Can you read? Obviously not. Oh well. Ian did not clean my clock, that much is clear. Thanks, however, for contributing nothing of substance to the debate. You provide no original thought, but hey, you did get a link from an extremely well rated website for your own site, so not all is lost! Too bad you couldn’t contribute anything of substance.

    -Gene

  42. Bob-

    Did you actually read the exchange? Funny how you and others are only focusing on one aspect and taking everything out of context. I am used to such parlor games with folks like you, but it is always a surprise that those who profess to understand so much need to resort to distortion in order to make points.

    Ian said that he is an innovator. That statement is logically inconsistent with a strong anti-patent position. I don’t care whether you can appreciate that or not, but it is the truth. Innovators by definition create things that are innovative, which means they are new, non-obvious and otherwise unique. Those who engage in endeavors that are unique do not begrudge others from obtaining protections themselves, because if what they are doing is really unique there is no skin off their nose for others to obtain protections. An innovator who concerns themselves with what others are doing and demands they stop obtaining patents are really only logically saying one thing. You shouldn’t get a patent and patents shouldn’t be issued because I want to copy you and I don’t want you to be able to prevent me from doing that.

    Ian also made ridiculous claims that everyone in the industry knows are false. His alleged investors are either the most naive investors in the world or he is lying. Investors universally want companies they invest in to have exclusive protections and the ability to prevent competition from getting to close. They are looking for competitive advantage. So for him to say he obtained $15 million in funding based on copyrights in software and trade secrets, which cannot exist in software, is false. Everything he said cares either little or no relation to reality.

    I also love it how you anti-patent advocates can only focus on the steam engine. You all are nothing more than a one trick pony. You choose to focus on one and only one thing and then ignore all historical facts that prove the exact opposite. I am not for a minute conceding the steam engine argument, but even assuming you are right is that the best you can do? Those who need to focus on an allegedly reality from over 100 years ago are the ones who are deluded. You have to look back in history to a completely different time and economy for proof you are right? That is a little like focusing on Carson Palmer completing 2 passes against the Jets and failing to point out that 10 passes were incomplete and one of the two that were complete were caught by the other team.

    The fact that you feel like you are in a Bizarro world makes me convinced I am right. Thanks for confirming everything I know to be correct.

    -Gene

  43. Old Timer,

    Where is my Christmas present? Don’t leave me hanging – I answered your question and you never responded.

  44. I have to say that I think that software patents are responsible for the lack of new exciting innovation in the US.

  45. Menachem-

    I think the far more persuasive argument is that the most exciting innovation in the US is software related and related to gadgets that are useful for running cool software. The iPhone is a phone/computer that is such a cool invention because it can be turned into many different things dependent upon the software running. For example, the iPhone can become a flashlight if you have the right application loaded. So the software turns a phone into a flashlight. Pretty cool if you ask me.

    I would love to hear exactly why you think software patents are holding back innovation. The most innovative companies in the US acquire software patents in droves. Not sure how and why that truth coincides with your statement.

    -Gene

  46. Wow Gene, you got owned here. I hope none of your clients read your blog.

  47. Software Engineer-

    Thanks for your concern. My clients all read the blog, and that is why they choose me. Folks who want to work with me choose me because of my informed opinions.

    I did not get “owned”, which is obvious to everyone who is objective, a group that apparently does not claim you as a member. The thing people like you will never understand is that those with business sense want patents and want to work with a patent attorney who thinks they should be allowed.

    I am doing fine thanks, and I am sure I will get more clients who want to obtain rights to exclude others, particularly those who are naive enough to ignore the need for patents. Amazing how people who innovate don’t really care what anti-patent individuals think.

    All the best to you, and thanks so much for reading and commenting! Thanks also for such an enlightening and substantive comment. Your insights are truly one of a kind.

    -Gene

  48. “Ian also made ridiculous claims that everyone in the industry knows are false. His alleged investors are either the most naive investors in the world or he is lying. Investors universally want companies they invest in to have exclusive protections and the ability to prevent competition from getting to close. They are looking for competitive advantage. So for him to say he obtained $15 million in funding based on copyrights in software and trade secrets, which cannot exist in software, is false. Everything he said cares either little or no relation to reality.”

    It seems as though we can settle this argument. You are saying Ian’s statements about raising $15M in venture capital for software ventures must be false, because your theory of innovation holds that it would be impossible to do so without relying on patent protection. So — if Ian actually DID raise $15M in venture capital for software businesses, that did not rely on patent protection, then your theory is shown to be flawed. If Ian DIDN’T raise that money, your theory lives on to fight another day. Is that a fair characterization?

    -T

  49. “If you are against software patents you are not an innovator.”

    You might have some informed opinions, but this statement lends you no credibility. Not only is it a broad, sweeping statement, but it also is at best highly contested, and at worst blatantly incorrect.

  50. I reviewed ian clarke’s wikipedia entry and I failed to uncover what he innovated. the spirit of his so called innovations is copy pasta. as for the people from reddit commenting here, most of them are freeloaders without an ounce of decent worth ethics in em. of course they would want everything for free at the cost of someone else.

  51. Gene,

    Ian obviously cleaned your clocks, both on proving you wrong about him not being an innovator (you are very temerary in asserting Ian isn’t an innovator, and very much wrong too), and also on presenting substantive evidence that demonstrates how harmful and poisonous software patents are.

    Honestly, I see nothing to contribute to this “discussion”. Because it isn’t a discussion at all, really — it is just a run-of-the-mill corn-pone opinion (re: Mark Twain) of someone with an axe to grind, followed up by a sound beatdown from a man who by your own admittance should be defending your case, but — were we to take what you said at face value — actually has INTEGRITY and doesn’t make money by denying others the use of infinitely inexhaustible resources through litigation and threats of physical punishment or destitution (in short: patent law).

    But I will anyway. I will direct readers of this comment to the book Against intellectual property by Stephan Kinsella. It should clear up any misconceptions on the factually false basis and morally corrupt nature of patents, patent proponents and patent law in general,

    As you said, let’s pray that Bilski is judged right… as long as you understand that right means *morally good and factually faithful*, not *more business for Gene*.

  52. It is a shame that lawyers don’t have to live with the nightmares they create for those of us that actually contribute to society. Imagine for a moment the idea of patenting a legal process as a business method and the impact that would have on these parasites of society.

    You as a lawyer could not file a claim on behalf of a client without first checking to see if any other attorney had a business method patent that generally applies to the practice area in which you are working. If such a patent exist you would need to license a copy of the claims process and pay fee’s to the licensee before you could submit your version of the claim to the court. I would bet searching 1.8 million business process patents would slow you down considerably. Probably permanently.

    If this process were owned by a large law firm, say Latham & Watkins, you may find that for a specific practice area in which they have developed novel approaches, the license fees are prohibitive for small shops like yours, and you simply have to take a finders fee on the work, and hand the client over to them.

    You might find predatory practices built around a portfolio of patents, which requires you to negotiate a significant percentage of your annual filings to the patent holder for your practice area, simply because they have more talent filing patents on every category of claim within the practice area every day. And you as a small shop could not afford to do the same.

    I think that if you had to eat some of the dog food you attorneys serve up for the rest of us, you wouldn’t be so quick to defend your cash cows. Given that the obtaining patents is not cheap for the vast majority of small businesses, you guys already have proven you have no interest in making a level playing field.

    I should be able to file a patent for 25 bucks. Make that happen and I would be more inclined to agree with the ideas you espouse. However, the chances that our legal system will actually extend access to everyone are about the same as you choosing to ride a bus to work. That ain’t happening anytime soon.

    At the end of the day, as usual, these laws only benefit YOU. Not US. And I hope SCOTUS puts an end to the entire area of business process patents, and patents on discoveries in nature.

    Your motives however are quite clear, and no one should believe otherwise. Attorney’s exist only to prevent war. The main contribution they make is redistribution of wealth. And beyond that you will rarely find anything they do produces a long term benefit in the societies in which they are tolerated.

    I for one think the world would be a much better place with fewer attorneys telling those of us that actually contribute to society, how we should do that.

  53. I am disappointed to find yet another person arguing in favour of software patents. I am an innovator, and am strongly against patents. I do not find this a “logically inconsistent” point of view.

    One reason for my opposition is simple: if I spend time working on a novel technique, then I do not want to find that I am being sued for patent infringement because someone else independently came up with the same technique, and I do not want to have to spend time and money filing a patent in order to protect myself. I do not want to participate in a “first to patent takes all” race. That is not the way to foster innovation.

    Patents also hinder the widespread adoption of techniques — indeed that is the primary effect of a patent. The patent holder can limit the adoption of his patented technique to those that are willing to pay for a license. Because the techniques are less widespread, fewer people are exposed to them. It is only by being exposed to ideas that you can learn from them, and improve on them, so this limitation of usage and exposure can prevent innovations happening that would otherwise have done.

    Where there is no threat of patent infringement hanging over people, it is common in software for people to collaborate, comment on each other’s techniques and share insights that can lead to better designs. The threat of patent infringement lawsuits can quash such collaboration.

    I do hope that the US Supreme Court agree that software patents are a bad thing.

  54. Contrary to popular belief, James Watt did not invent the steam engine.
    He merely improved the “algorithm” of the steam engine.

    Before Watt came on the scene, folk in England were using the Newcome steam engine.

    Everyone used the Newcome engine.
    It was the best thing since sliced bread and there was no reason to fix something that wasn’t broken. The mathematicians of the day termed the Newcome engine as being Newcome-Turing “complete”. It was the be all and end all of the dawning Industrial Age that would lead Britannia to new prosperity and greater empire. (I’m kidding of course about the Newcome-Turing “complete” stuff.)

    James (Tiberius Kirk) Watt was an “inventor”. (Not an ‘innovator’ of BS. No he was an “inventor”. The real thing.)

    He recognized what others before him had failed to “recognize”, namely that the Newcome engine was highly inefficient. It wasted tremendous amounts of fossil fuel and greatly polluted the air.

    Watt figured out a way (an “algorithm’) to reduce the fuel consumption of the already existing steam engine by a whopping 75% !

    To read more, go to this link: http://www.ideafinder.com/history/inventors/watt.htm
    Also, here is the Wiki low down on what’s what with Watt: http://en.wikipedia.org/wiki/James_Watt

    If Watt had not gotten patents for his improvement “algorithms”, others could have easily taken his ideas and paid him nothing for them. It was the fact that Watt profited so handsomely from his patents that encouraged others in England and in the USA to go out and invent their own stuff.

    So yes Virginia, patents do “promote” (accelerate, increase) the rate of already exiting “progress” in the useful arts.

    In its day, the Newcome engine was already “progress” enough. But Watt promoted steam engine technology to a whole new level. So much so that we no longer buy electricity in quantities of Kilo-Newcome-Hours. Imagine that!

  55. Gene,

    How do you back your reasoning that “[copyrights and trade secrets] cannot exist in software”?

    It’s also interesting that you mention the iPhone as an example of innovation since, apparently, Nokia found it to be in breach of their own software patents.

  56. “You aren’t an innovator if you don’t support software patents and you have to support software patents to be an innovator”

    Gene, your position is so laughably stupid and provably wrong that I’m convinced you’re a libertarian

  57. As an entrepreneur in several startups, in both software development and managerial positions, and also in larger organizations as well, it seems very clear that software patents, in the great majority of cases, harm far more than they help.

    Note that I said ‘great majority’ – I don’t think there is a simple answer of ‘software patents are good’ or ‘software patents are bad’. In that respect I disagree with most of the views appearing here.

    In the great majority of software patents, the ‘innovation’ is trivial. Developing it costs less than the cost of writing the patent up, reading about prior art, filing it, etc. The things people generally get patents for are things that a clever software engineer can think of in a day (it might take longer to implement, of course). And that is the real problem with software patents.

    Patents work well when they defend *actual* investments of time and effort. For that reason patents make sense in non-software areas (like new drugs). And, rarely, patents make sense in software, for example patenting something like JPEG compression is reasonable in my opinion – it took many experts a lot of time and effort to devise JPEG.

    As a side note: Nobody reads patent filings in software – it is useless. You won’t find anything a talented engineering team in your own company couldn’t quickly come up with, except, again, in the very rare case of something like JPEG.

    The main benefit of software patents is in raising valuations – when you are pitching to investors, they like that you have patents. Part of the reason is a mostly-misplaced belief that the patents will protect the business (they won’t, because the software market moves much, *much* too fast for that), and another part is that if you fail, at least you can sell off the patents. Such sales can often be to NPOs (non-practicing entities), which cause no end of troubles for the industry as a whole (but benefit the investor of the company selling to the NPO).

    In summary, software patents are doing very badly for the industry. If they were ‘fixed’ – only truly innovative things could be patented – then that would be great. But that’s already the way things should be, and yet the system is circumvented left and right. For that reason, I would prefer that software patents be eliminated, or at least restricted in a *very* clear way.

  58. Software programmers should read and understand patents before writing code.

    Please educate them to do so, especially those working for large companies and on open source projects.

  59. @pop
    1990’s called, they would like their M$ rant back.
    Microsoft has done a lot to change, for example moving away from a proprietary document format into something a lot more open. Ironically, that is what has gotten them into trouble.

    Perhaps save that rant for the ‘champion-of-the-people’ Apple. They take free BSD, put bubble icons into it and sell it! Or look at the restrictions on what you can install or do with your iphone (or any apple hardware). Or look at google’s EULA. These are the new Microsoft.

    @Gene
    I am a developer, not lawyer so please excuse my ignorace. For most developers, the problem with patents lies with the patent trolling such as the blackberry case, or when patent infringement judgements give the patent too much scope. Do you think that this could be fixed by tightening the tests applied to patents, perhaps raising the bar on what is considered to be prototype,what is prior art or what is obvious?

  60. Because we all know just how unbiased Stephan Kinsella is….

  61. > Ian said that he is an innovator. That statement is logically inconsistent with a strong anti-patent position.

    You may try and prove how his achievements were not innovations by examining them and arguing how they are not. Labelling someone being non-innovative because he disagrees with you doesn’t cut it.

    Likewise, I can’t comment if your arguments in court constitute anything novel and therefore you are being innovative at all just by looking at your contribution to the debate here. I can only envy your being in a field where thoughts cannot be patented, so you don’t have to tiptoe around an argument in court just because someone else used the same before.

  62. There is a patent for double-click, for instance. The handling of the event that is used for opening files in desktops everywhere and in several OS is patented. That effectively means that someone (MS, I think) can use legal means to prevent your alternative software to use a well established and generally acknowledged way to interact with a computer. This applies also to windows (the concept, not the OS) and… well, too many thing to mention. Please enlighten me how this is meant to promote innovation.

    There was an argument in the lines of “there can be only one” regarding Google phone and the iphone… the reasoning being that the next big idea from one of the companies would bury the next. Although this can be true under certain circumstances, the fact remains that, many times, the first to market isn’t the most successful. Still, if the first to market makes a failed attempt at something and is later superseded by someone who just did it better, should he be allowed to sue them? Should myspace sue facebook? I’m sure some concepts and algorithms are common.

    Let’s go a bit lower… let’s say that some well known algorithms in CS are patented. Some are, now, quite obvious. For instance, any programmer that thinks of ways to synchronize two databases will, given adequate training and time, reach the same conclusions and algorithms that are now standard. Should they be patented? Let’s say I’ve actually improved an existing algorithm. Since it relies on a patented one, I can’t use it or release it (at least not before going through very complicated loops). But all of this is secondary to this:

    It takes a considerable amount of money to establish a patent. Since patents have limited geographic scope, it takes many times that to establish a patent that would cover a significate portion of the global market (oh, using more than one country, this becomes waaaaay messier, because you can patent something that exists but is not patented locally under some legislations, under others you have to patent it all at once or it’ll be contested as previously existing idea, even if it’s yours… messy really). Now, most MBAs and busyness ppl will tell you that the greatest innovators may come from previously unheard of companies (google, a while back, for instance). These companies may have ideas, but they lack capital. So, they can’t both pay for all the patents the need (and in the us, all is patentable) nor establish the patents needed to defend their IP (let’s assume that intellectual property is not a made up term for a minute plz).

    So please… this helps innovators how exactly?

  63. Thatcher-

    You say: “if Ian actually DID raise $15M in venture capital for software businesses, that did not rely on patent protection, then your theory is shown to be flawed.”

    It is not that simple. Despite the mischaracterizations by many, what I said was that either Ian is lying or his investors are the most naive investors in the world. So if Ian did raise $15M in venture capital my theory is correct, although he would not be lying. Sophisticated investors demand patents because with a patent come a number of things. First, you obtain the right to exclude which comes with a competitive advantage. Second, you obtain insurance. In the software space in particular companies that do not have patents are targets. If you have patents and get sued you counter-sue and the fight is on. Software patents are typically extremely broad and there is a good chance that an argument can be made that a competitor is violating patents you have. Of course, in order to make such an argument you need to have a patent. So whether or not you like software patents the fact that others have them mean you need to have them as well. Otherwise you are betting your company on a naive philosophical opposition to software patents. Sophisticated investors would not invest in a company that follows reckless business practices based on a particular world view.

    -Gene

  64. Bob-

    You are entitled to your opinion, even though it is incorrect. Those who are against software patents are against them because they don’t want to be excluded from doing whatever they want. The problem, however, is that to be an innovator you have to innovate and create something that has not heretofore existed. Those who don’t want to have to search and want to just do whatever they want are not innovators because by definition they are not doing something that heretofore never existed. They are doing something that someone else did first. Whether you like it or not, doing what others have already done does not make you an innovator.

    Independent creation leads to a copyright, not a patent. Independent creation does not make you an inventor or innovator, it means you came up with the same thing that others previously innovated.

    -Gene

  65. Gene,

    An innovator is not required to hold any position on the patent law. Consequently, any individual who could reasonably qualify may choose to express their views on the matter in any way desirable — or even inconsistently — without affecting their status as an innovator. I’ve noticed that your use of the phrase such as “everyone knows” only serve to lure — or perhaps even misguide — individuals who have not yet formed their own opinion. Given that you exhibit the necessary mental faculty to apply logic, it seems that your debate tactics are deliberate. If you’re really interested in an honest debate, may I respectfully suggest that you refrain from such sweeping generalizations?

    As for the subject matter at hand, it is most decidedly not as conclusive as some practitioners of the patent law may lead one to believe. There is no definitive proof that patents facilitate innovation. It is however irresponsible to attribute malice and misappropriation to individuals who derive a solution independently, only to find themselves unable to use it due to existing patent protection. The notion that fruits of one’s labor must be artificially hindered in the marketplace due to the priority of patents with respect to time, is dangerously close to tyranny. The assumption that only those who wish to infringe would argue against patent protection, is a fallacy.

    The common argument that the advancement of art and science is facilitated — or as some would argue only possible — with legal protection is refuted by centuries of development that did not depend on such legal hamstrings. Even today, art and science progress largely independent of such legal encumbrance, presumably driven by the natural aspiration to create. When the two do interfere, the law often serves to terminate any future progress till such time that the protection expires.

    Lastly, there appears to be a great divide between lawyers and innovators, in that the lawyers often do not experience the dangers that innovators are faced with routinely.
    Perhaps we should lobby the legislators to permit the patenting of legal arguments, or perhaps even the methods of delivery of said arguments.

  66. Rudd-

    I am glad you mentioned Stephen Kinsella, who has been banned from commenting on this blog because he is a liar. He lied about private communications we had, and I proved he liked by showing our communications. Tying your arguments to a liar is not wise.

    Kinsella is a patent attorney who thinks patents are evil. He is incapable of making logical arguments. When I asked why would anyone want to go to a patent attorney who was anti-patent he said that was like saying you should go to an oncologist who is pro-cancer. Even the logically challenged understand that is ridiculous, but was the best Kinsella could do. You see, the goal of filing a patent application is to get a patent, so why would anyone want to use the services of someone who thinks no patents should be obtained? The goal of seeing an oncologist is to kill cancer, so you want to go to an oncologist that is anti-cancer. Kinsella doesn’t trouble himself with logic, and apparently neither do you.

    -Gene

  67. Gene,

    “what I said was that either Ian is lying or his investors are the most naive investors in the world”

    And both of these statements are false, and demonstrably so. I’m not lying, you can Google me and confirm everything I’ve said.

    And I’ve also told you who my investors are, and they are top-tier (if you don’t recognize that then you don’t know much about venture capital).

    It is true that some naive investors do instinctively think that software patents are valuable, because they foolishly listen to people like you (Gene). There are a wide range of investors, some of them are very smart, some of them are, frankly, morons. I’ve had many conversations with investors about software patents, and I have never failed to persuade them of the business case against wasting time and money on them (because there is a good business case against them, aside from the moral case).

    The only real value I can think of to owning software patents is that you can sell them to a patent troll if the business fails. But in most cases it costs far more to get the patents than they are worth in a firesale, and by selling them to a troll you only gum up innovation in the industry even more.

  68. Anthony-

    I disagree with you, but your opinions seem informed and logical. I would primarily disagree with your working definition of “innovation.” By definition an innovation cannot be something that others have previously done. It seems that you are blurring copyright concepts of independent creation with patent concepts of innovation.

    You are certainly correct that collaboration in the software community can significantly enhance the resulting software. As many open source companies are figuring out owning patents is not at all inconsistent with collaboration. If I have patents and you have patents and we want to collaborate and create a patent sharing situation or patent pool that benefits everyone. It also means that we all have access to a pool of patents that can be used against others who are not willing to engage in sharing or collaboration. So if Microsoft wants to go after folks in the open source community and they go after those who are patent owners themselves they will be on the receiving end of a lawsuit. Given that most software patents contain claims that are invalid the threat of having your patent portfolio exposed is a real deterrent.

    Reading what you write I would suggest that you are not necessarily “strongly against patents.” I sense you are strongly for collaboration which enhances innovation. Patents are not inconsistent with that, and in fact proper use of patents in a consortium of like minded individuals/businesses can and does enhance innovation.

    Cheers.

    -Gene

  69. Paolo-

    First, time will tell whether Nokia is right or Apple is right. It is almost certainly a fight not about truth, but rather a business dispute that will result in some kind of negotiated settlement. But don’t make the mistake of believing that a plaintiff in a patent lawsuit always wins and is always correct. Also, don’t forget that Apple has cross sued Nokia because they believe Nokia is infringing their patents. If Apple didn’t have patents they would have been a target, but because of their patent portfolio they are an adversary. This is exactly why all software companies need to have at least some patents.

    I did not say that copyrights cannot exist in software. Software can be copyrighted, but copyrights do not protect functionality. Copyrights protect the software code. So without a patent I can see what you are doing, even look at your code, and then independently set out to create exactly what your software does and as long as I don’t cut and paste the code there is nothing you can do. So copyrights in software are extremely weak and only usable to prevent exact copying. Given that it only costs $45 to obtain a copyright in a software program you might as well get one, but you certainly protection commensurate with what you are paying, which is not much.

    In order for something to be a trade secret it MUST remain secret. Once software is released everyone can see what it is, what it does and look at the code. You can lock the code up, but it can be reverse engineered. That being the case, as soon as software is released any trade secret that previously existed is lost. It is really that simple.

    Gene

  70. Reid-

    You have contributed nothing to the debate. My position is laughably stupid and provably wrong, really? You do realize that is a naked conclusion without support? I guess we all are just supposed to take your word for it because you know better. Too bad you couldn’t substantively contribute to the debate.

    -Gene

  71. Johannes-

    You say: “Labelling someone being non-innovative because he disagrees with you doesn’t cut it.”

    Is there any particular reason you choose to mischaracterize what I said? Does it make you feel better or maybe superior?

    I did not label Ian “non-innovative” because he disagrees with me, but because it is the truth. Innovators innovate. Innovators do not copy others. I don’t understand why basic definitions and fundamental concepts seem so illusive to so many. Truly sad.

    -Gene

  72. Observer-

    You say: “Even today, art and science progress largely independent of such legal encumbrance, presumably driven by the natural aspiration to create.”

    This is true, but misses the point. Innovation requires funding, and funding is available from sophisticated investors only if there is a reasonable believe that there is a competitive advantage. Overwhelmingly, sophisticated inventors require patents. I am sorry you don’t like it when I say “everyone knows” but those in the industry do know this to be true. So when I say everyone in the industry knows that to get funding from sophisticated investors you need patents, you may not like the statement, but it is 100% true.

    You say: “Perhaps we should lobby the legislators to permit the patenting of legal arguments, or perhaps even the methods of delivery of said arguments.”

    You probably think this is clever, and have no idea just how ridiculous this is and how it demonstrates you know nothing about patents. In order to obtain a patent there needs to be an innovation that is new and non-obvious. Making legal arguments does not satisfy these fundamental requirements, so lets just say that legislators permit the patenting of legal arguments. That won’t matter. And… by the way… just for your information… the making of legal arguments is patentable subject matter in the US already, as are tax avoidance methods and systems that enable the same.

    -Gene

  73. Gene,

    “So when I say everyone in the industry knows that to get funding from sophisticated investors you need patents, you may not like the statement, but it is 100% true.”

    How many times do I need to debunk this claim before you will stop making it? I AM in the industry, and I have raised money from some of the most sophisticated investors in the country based on business plans where patents aren’t even mentioned. You can confirm this independently through a Google search if you don’t believe me.

    Please stop repeating a claim that has been unambiguously demonstrated to be false, you do nothing to help your credibility when you do.

  74. Gene,

    “Kinsella is a patent attorney who thinks patents are evil.”

    I don’t know this Kinsella guy, but based on your description of him, I like him already.

    “He is incapable of making logical arguments.”

    We’ve learned that your definition of a logical argument appears to only cover arguments you agree with. You have the right to your own opinions, but you don’t have the right to your own logic.

    “When I asked why would anyone want to go to a patent attorney who was anti-patent he said that was like saying you should go to an oncologist who is pro-cancer. ”

    A clever response that was apparently way over your head. You would want your patent lawyer to give you their honest advice on whether or not it would be beneficial to seek patents, just as you would want your oncologist to give you honest advice as to whether or not you require chemotherapy.

    In contrast, it seems that your advice is that patents are always desirable, regardless of the actual facts. Your like an oncologist who administers chemotherapy regardless of whether the patent actually requires it.

    I can see how this makes you more money, but its hardly in the interests of your clients.

  75. Gene,

    In your estimation, what is the general consensus in the legal community regarding the protection of legal arguments? It seems that legal arguments and methods of delivery are very much amenable to being novel and non-obvious. I will make an effort to double check your claim about it already being a patentable subject matter, and to what extent, as you have failed to provide any references. My experience has led me to believe that lawyers generally dislike such infringement of their right to express themselves.

    As for the necessity of funding, I entirely agree. It’s rather a necessity of survival if you think of it, and thus goes much deeper than any arguments regarding patent law. We all must sustain ourselves. It is yet more obvious that funding can come in many forms and with varying requirements. It is apparent that funding is being dispensed by successful entities without regard for offsensive patent protection. However, funding and thus resultant innovation can and in fact is being hindered by the concerns for defensive patent protection. Investors may be uneasy not about the lack of an offensive capability, but the potential failure on the return as a result of not being able to adequately defend against frivolous litigation.

  76. ” Innovation requires funding, and funding is available from sophisticated investors only if there is a reasonable believe that there is a competitive advantage. Overwhelmingly, sophisticated inventors require patents.” – Gene

    In software development, especially now, the required costs for innovation are very low such that innovation doesn’t require funding, or rather venture funding as there are still some costs involved, but these are costs that could be covered by a paper route. Such is why there is such a large hobbyist programming community, as the costs associated are so low, and the requirements to develop something completely new are only dependent on the creativity of the developer.

    “I am sorry you don’t like it when I say “everyone knows” but those in the industry do know this to be true. So when I say everyone in the industry knows that to get funding from sophisticated investors you need patents, you may not like the statement, but it is 100% true.”

    I suppose it depends which Industry. It may be that among patent lawyers it is the common belief. As the comments here show, within the software development industry that’s not the case at all.

  77. Blind Dogma,

    I don’t see your response. Mind you, I’m old and my eyes don’t work as well as they did in my younger years so maybe I’m just missing it.

    Can you direct me to it or repost it? I’ll have my trifocals handy and will review it right after my morning nap and sponge bath.

  78. http://www.pluto.it/files/meeting1999/atti/no-patents/brevetti/docs/knuth_letter_en.html
    Might be an interesting read…

  79. -All

    I could almost cry. I had written about an hour’s worth of material when I hit the wrong button and lost everything. There have been a lot of posts since I started working on this and it is being re-written so please bear with any new developments and typos.

    Thought also posted something similar to my argument but I found after most of this was (re)written so just take his post and mine as complementary.

    I think we need to distinguish between different kinds of innovation. One kind of innovation is, for lack of a better term, Adam Smith innovation. This isn’t to be confused with what the Indians call “Jugaad” or the more colloquial phrase “Jimmy rigging”. Right now there is a big fad around Jugaad claiming that it will lead us into the future of innovation. While Jugaad is creative, it isn’t real innovation because it just fills a gap until a better solution can be applied. Innovation as Adam Smith described it, on the other hand, happens through division of labor, or more specificially, intimacy with the process at hand.

    Humans don’t like doing repetitive tasks and they certainly don’t like doing inefficent repetitive tasks. As a group we have a need for perfection and stimulation, and inefficent repetitive tasks are starkly opposed to that. Given enough time and room for improvement, any person set on a repetitive task will eventually change it. There is nothing special about this, it is part of being human and makes us feel better about ourselves and how we spend our time. In fact, people will find ways to do this not only when it isn’t protected, but even at times in spite of set regulations, conventions, and policies. Everybody knows or has worked with people who do things their own way because it is “better”. This kind of innovation will happen no regardless of any protection systems because it is part of human nature.

    Another kind of innovation, which I will call Industrial research, is quite different. Some problems are either so difficult to solve or require such a great amount of resources to solve that they usually won’t natually be worked out on their own. As a people we still have a desire to solve or improve on upon these problems but it requires us to devert great amounts of resources and spend long stretches of time working together. Universities and Government sponosred research labs work on these kinds of problems, but what about the private sector? In this case I actually approve of patents, even for software, because we want those innovations and anybody but the extremely rich with a pet peeve are going to need assurance that their resources and time will be protected for doing such research, otherwise they might go out of business.

    One of the problems as I see it is that most, not all but most, software innovation occurs via Adam Smith and not through industrial reseach. I am sure the some companies spend lots of time and money researching things that would be worked out on their own, and often times are. Programming related innovation is going to happen regardless because programmers will always strive to improve the tools and techniques they have to work with. Open source has developed many useful tools, programs, and processes because in their spare time and with their own money, they just wanted something “better”.

    Quote from Old Timer –

    “Design me a circuit, and I can code it into firmware or software. Or give me some firmware or software, and I can reduce it to logic circuitry (or at least I could have long ago . . . ). Excluding an invention from patentable subject matter just because it is embodied as software or firmware, rather than circuitry, makes no sense whatsoever. ”

    I think you are missing the real problem here, which isn’t how it is implemented, but what it is: a process. Software processes, business process, and in fact all processes are what is really the heart of the matter here. Should these processes be allowed to be patented, either in circuit or software form? Because of the need and want for a specific test it seems that all processes get grouped together, when in fact, like innovation, distinctions should be made. The obviousness test should rule out processes that don’t deserve to be patented, but they don’t, and here is the problem.

    The kinds of processes that we use and modify all the time in our real life without even thinking about it much, are somehow given free passes as new and innovative when written into software. If I write my patent to describe a server that sends a message to a client and then the client sends a coded message back to the server to describe the result, what does that really mean? Military and police have been doing that sort of thing since way before software with radios and messengers.

    Programs are often written to implement real life patterns to help people do things they were already doing, or couldn’t do without the speed of a computer. It isn’t surprising that in the pursuit of that, other patterns from our experience and common knowledge make their way into facilitating that. It isn’t because the process is being stolen, but because it is really an obvious solution to a common problem. By the time it gets dressed up in tech jargon and laywer speak it sounds very impressive but most of the time it’s just a slight variation on a really old theme.

    Quote from Step Back-

    “The patent system sets up a race. Only one of iPhone and Google phone is going to get to the finish line first. And whoever does it with the next “big thing” (the next killer app) will get the patent for it; even though both contestants may have “independently” developed. In a foot race, every runner “independently” develops his own speed. But only one takes the winner’s tape.”

    I understand the logic here, that if you put a patent at the top of a mountain, it will encourage people to get to the top faster, and for large industrial research projects I agree with this kind of reasoning. If, however, your mountian is the equivillent of walking a foot in a half and the first person to fall out of their chair could get there, then what purpose does it serve other than to mark off a common space that would be useful?

    Domain name companies don’t do anything really special when they register for hundreds or thousands of domain names and then wait for somebody to need one in order to sell it to them at an exhorbinant amount. That is how the big comapnies with thousands of patents feel. They probably don’t see anything speical in most of their patents, but it is another weapon in their gun cabinet to go after competitiors or keep competitors at bay.

    Quote from Gene –

    “Ian said that he is an innovator. That statement is logically inconsistent with a strong anti-patent position. I don’t care whether you can appreciate that or not, but it is the truth. Innovators by definition create things that are innovative, which means they are new, non-obvious and otherwise unique.”

    I think that I have gone to enough lengths in this post to show that some kinds of innovation will happen regardless of patents or other government protections.

    Quote from Gene –

    “An innovator who concerns themselves with what others are doing and demands they stop obtaining patents are really only logically saying one thing. You shouldn’t get a patent and patents shouldn’t be issued because I want to copy you and I don’t want you to be able to prevent me from doing that.”

    This goes back to your other comment about how we are all just thiefs who want to steal other people’s work, which isn’t true of me and probably isn’t true of a lot of other people. Both those statements are over-generalizations and at best are only partly true.

    Besides the whole copying thing is pretty bogus when it comes to

    Quote from Gene –

    “I also love it how you anti-patent advocates can only focus on the steam engine. You all are nothing more than a one trick pony.”

    To be honest, you are the one who brought it up.

    Quote from Tamas –

    “1990’s called, they would like their M$ rant back.
    Microsoft has done a lot to change, for example moving away from a proprietary document format into something a lot more open. Ironically, that is what has gotten them into trouble.”

    Please my friend. Their OS, despite years of complaining, refuses to do anything serious about security. People were able to crack a Windows 7 box the first week it came out because it still has one of the same flaws it used to have. Even their CEO Steve B said that they aren’t focused on security and their products aren’t designed with security in mind. They can’t even get it to be properly backwards compatable with their older OS.

    Their browser has a well known javascript security hole that has never been fixed. You can goto crashie.com to find out. It is the only modern browser not to support SVG and Canvas. They don’t care about standards or what developers need and often go off to do their own thing in the browser world. It is the bane of every web developers world.

    Instead of picking up the popular, industry collaborated Open document standard, which would cause huge immediate competition from IBM, Sun, and everybody else who works on the OpenOffice project, they tried and fail to get their own bogus XML format standardized and then went ahead and implemented it anyways and then go sued for it. They couldn’t even get the votes they needed and they tried bribing on of the voters.

    Microsoft is a joke that isn’t funny.

  80. -Gene

    I don’t always agree with your opinions, but I have nothing against you as a person, and I certainly don’t mind defending you when I think you are being wronged. I also enjoy the jousting and even though you probably won’t ever convert me all the way , you have influenced my opinions more than it may appear. When I first found your blog I was against all software patents, but I have a much more forgiving and nuanced position these days.

    I’m not sure where you live, but a couple beers doesn’t sound that bad.

  81. “Innovation requires funding, and funding is available from sophisticated investors only if there is a reasonable believe that there is a competitive advantage.”

    The beginning of this statement alone indicates the single largest misunderstanding of software development I’ve yet to see in this thread.

    Software development and the accompanying innovation is not solely dependent on funding. Do well funded developers innovators create a lot? Certainly. Is the kid slinging burgers in the back of McD’s with a 5 year old Dell at home capable of creating software just as well? Yep. The barriers to entry for creating new software are incredibly low. You need a computer, some place to plug it in, and an Internet connection would be nice.

    You’ve started from the position that all innovation requires money, something true for other industries or products. Software doesn’t and you shouldn’t assume it does.

  82. > Gene, your position is so laughably stupid and provably wrong that I’m convinced you’re a libertarian

    Libertarians are generally opposed to patents, actually. The thinking is that if I develop an idea / invention / innovation independently, it is wrong for government to use force/coercion to restrict what I can do with my idea / invention / innovation, just because somebody else had the same idea / invention / innovation.

    Yes, libertarians are strong “pro property rights” but from what I’ve seen, most libertarians reject this particular notion of “property.”

    Personally I reject patents on both moral and pragmatic grounds. Patents do nothing to accelerate innovation, and the “arms race” scenario that results in a less restricted environment would – as everyone obviously knows – do far, far more to foster innovation.

  83. Untested & Colin-

    Of course innovation requires funding. You can choose to ignore the obvious truth to that statement if you like, but I chose not to ignore reality.

    Yes, you can create software by using a crappy old computer, but creation takes time. If you are creating for free there are opportunity costs, which are still costs. If you are not creating software as a business then you do it in your spare time, and what you create is necessarily less because you have to spend time on your paper route (as Colin suggests) in order to pay for the necessities of life. So suggesting that innovation does not require funding ignores economic realities.

    Our system is set up to allow individuals to make money from the fruits of their labors in order to allow them to engage in more of such activities so society gets the benefit of additional creation.

    -Gene

  84. > Innovation requires funding, and funding is available from sophisticated investors only if there is a reasonable believe that there is a competitive advantage.

    “First mover” advantage and the talent of the people doing the innovation is obviously sufficient. Anybody who can’t see that is terribly naive and uninformed about how the technology business works. And without the artificial restrictions imposed by patents, companies are *forced* to innovate continuously to maintain their advantage. It’s a classic “arms race” scenario and it is an amazing thing. Nothing foster innovation like good, old-fashioned, competition.

  85. Phillip-

    In reality, it is you who are terribly naive and uniformed. If small business creates a revolutionary technology and does not obtain a patent then Mega Corp will simply copy it, run it into its distribution chain, charge less because they have not had to lay out the creation costs and put small business out of business.

    Patents foster competition, and are quite fragile. If you have a patent you need to keep pushing the envelope in order to continue to keep your competitive advantage. Otherwise I improve on your invention and block you from improving your own work. Patents also cause investors to part with capital and fund further innovation. Patents clearly do more to foster innovation, and those that do not understand that do not understand patents.

    -Gene

  86. OldTimer-

    You make a valid point and I’d like to respond.

    “My issue with Bilsky and the anti-software patents crowd is that it is next to impossible to draw a principled distinction between what should be excluded from patentable subject matter and what should be included.

    ]Much of my practice over the past 10 years has involved computer-implemented inventions. Twenty years ago many of these inventions would have been reduced to hardwired circuitry in an integrated circuit or even on a board, primarily because memory and speed limitations would have made them infeasible to embody in firmware or software.”

    I agree with you up to this point.

    “I think everyone would agree that such circuitry would be patentable subject matter.”

    I take exception here. I think such circuitry should be excluded from patent protection, for the same reasons that developers here are arguing against software patents. In order to promote progress, circuits above a certain level of complexity would be better protected by copyright (or something similar). I believe that the advent of software technology has exposed a contradiction in our IP laws — in a field like software, characterized by a high rate of production, heavy reuse and high complexity, patents really do seem to be harmful, and yet it is hard to draw a line between software and non-software.

    What are the implications?

    * Perhaps patents are harmful in general. I know there are anti-patent arguments that precede software (e.g. aviation progress in the US was stagnant until Congress invalidated the Wright Bros patents) but I agree that abolishing patents altogether would be risky.

    * Perhaps patent protection should be denied for anything above a certain level of complexity. E.g. the independent claims each need to fit in an SMS. (Half kidding.)

    * Perhaps the patent system is just implemented poorly. Allow for independent invention, or have a compulsory license, or fix the PTO, etc.

    Personally, I think making “software” a no-patent zone is probably the easiest, safest and most effective change, even if the line around “software” is poorly defined.

  87. @ Ian,

    I’ve never heard of you prior to today, but checked your Wikipedia page in response to the comments by another poster. You’re clearly highly intelligent and have accomplished a lot, for which you deserve accolades. I’ll suggest a few things based upon your posts here and what I read in the Wikipedia page.

    1. Unlike me, you’re young. This is to be commended. I wish I were young. Your views will likely become more nuanced as you gain age and experience, and really begin to appreciate the genius of Matlock reruns and eating dinner at 4:30. Among the views that will moderate will be your views on software patents.

    2. It’s not apparent from your Wikipedia entry that you stayed with any of your entrepreneurial or employment ventures long enough to transition from concept/beta to commercialization of a product and monetization. In fact, to the contrary it appears that you are more of a creative genius who probably gets bored when the creative blast is over and the more monotonous aspects of building a business take over. That’s great, and the world needs people like you, but you should acknowledge that your experience probably colors your view of the patent system.

    3. Further, it’s not apparent from your Wikipedia entry that any of the ventures you have founded have ever turned a profit or generated a return for investors. That’s fine–most startups don’t. But you need to understand that the capital pool you accessed was generated by profits from other ventures, many of which were/are protected by patents. There is nothing inherently evil about patents, including software patents.

    4. Software patents are, in many ways, an attempt to address precisely the same problem you attempted to address with your FairShare project. You are correct that copyright is not a wholly adequate tool for compensating software developers. Unlike literary and artistic works, where copying is immediately detectable, it is pretty hard to detect copying in software unless you have access to the underlying code. Patents are another way to attempt to address this issue.

    5. Patents are of less utility in the software-as-service world, which probably also colors your view of the patent system. Your world view may change if you ever get involved in developing software that gets embedded into particular product(s), which are then manufactured and sold.

    6. I wish you luck with your current venture and your future ventures.

  88. “First, time will tell whether Nokia is right or Apple is right. It is almost certainly a fight not about truth, but rather a business dispute that will result in some kind of negotiated settlement. But don’t make the mistake of believing that a plaintiff in a patent lawsuit always wins and is always correct. This is exactly why all software companies need to have at least some patents.”

    I think you nailed it here. The software patent business has degenerated into a mutual assured destruction policy. There may be a theoretical good in software patents, but the current state is so bad that this good is deep down in a sea of crappy patents whose purpose is just to stifle innovation as soon as you are going to be outperformed.

    Do you really think that, because Amazon had the idea, no one should be able to write a web application that stores your credit card information on the server for 20 years (without paying royalties)?

    Besides, the complexity of software systems is such that it is basically impossible to build one without infringing one of the existing patents. So, if you are an innovator, you cannot just patent your strongest innovation, because your software would still infringe a million patents owned by others. You must then participate in cross-licensing agreements that radically diminish the value of your strongest patents (since the other licensees can use them).

    “Given that it only costs $45 to obtain a copyright in a software program you might as well get one, but you certainly protection commensurate with what you are paying, which is not much.”

    First of all, please read the Bern convention. It costs $0 to obtain a copyright in a software program or in anything else. That said, there is much more in software than the code. The design costs are huge, and copying user interface is only a very small part of the problem (how to meet goals such as performance, scalability, portability is something very hard to reverse engineer). Quality assurance is expensive too (and all software has bugs, so copying the approach from someone else does not help you here). If two competitors have deals with particular hardware companies (e.g. different processors in your phone, to put it very simply), chances might be that it’s cheaper to just rewrite it.

    “In order for something to be a trade secret it MUST remain secret. Once software is released everyone can see what it is, what it does and look at the code. You can lock the code up, but it can be reverse engineered. That being the case, as soon as software is released any trade secret that previously existed is lost. It is really that simple.”

    Reverse engineering is _not_ that simple. It is incredibly expensive and you should have _really_ good reasons before even thinking of it. In many cases, it is not even possible to reverse engineer because you do not have access to the code or even to the raw data that the code processes—you only have the output, but that’s hardly interesting. Take for example something like Amazon or Facebook: you can readily list their functionality and you cannot even look (in obfuscated form) at the code that runs inside your web browser, but you cannot look at the code that runs on their servers. And you do not have access to another secret, possibly the most important one, which is the infrastructure that they have set up over the years to ensure scalability, performance and reliability.

    Software is complex, but computer systems (be them gizmos like a smartphone or operating systems or sites like Facebook) are even more complex. In the end, patents (even if they were done right) would only protect a small part of an innovator’s assets. If they are flawed (and in my opinion the flaws have been exploited in a way that is unrecoverable by now) *and still insufficient*, where’s the good?

  89. Quote from Paolo Bonzini –

    “Reverse engineering is _not_ that simple. It is incredibly expensive and you should have _really_ good reasons before even thinking of it. In many cases, it is not even possible to reverse engineer because you do not have access to the code or even to the raw data that the code processes—you only have the output, but that’s hardly interesting. Take for example something like Amazon or Facebook: you can readily list their functionality and you cannot even look (in obfuscated form) at the code that runs inside your web browser, but you cannot look at the code that runs on their servers. And you do not have access to another secret, possibly the most important one, which is the infrastructure that they have set up over the years to ensure scalability, performance and reliability.”

    This is very true. This is also a point where a distinction between patents and copyright come into play. I will say this though, if you have to reverse engineer a program of any size or complexity in order to figure out the process it uses then you are pretty bad off. You loose most of the important information like variable names and comments. Reading through reverse engineered code is extremely hard and time consuming. If you had any other way of determining the process it would be faster and cheaper to just re-invent the wheel so to speak than to try and steal code that was reverse engineered. Anybody who tries to claim that it is easy to steal code from binary/executable/object files knows nothing about what an undertaking that is.

  90. OldTimer,

    Thanks for your comments. In order:

    “Among the views that will moderate will be your views on software patents.”

    I’ve always been very suspicious of this kind of argument, its essentially a mild form of ad hominem. There are smart and stupid young people, and so far as I can tell, an equal proportion of smart and stupid old people. Beyond a certain point I don’t think age correlates with intelligence or understanding.

    There are many older people who are opposed to software patents. A good example is the highly respected computer scientist (maybe the most respected of all) Donald Knuth – http://progfree.org/Patents/knuth-to-pto.txt.

    You might dismiss Knuth because he is an academic, but even uber-capitalist Bill Gates has also made critical comments about software patents in the past, for example “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today”.

    So its not just the young and naive, nor ivory tower academics that believe software patents are damaging.

    “2. It’s not apparent from your Wikipedia entry that you stayed with any of your entrepreneurial or employment ventures long enough to transition from concept/beta to commercialization of a product and monetization.”

    True in some cases, but not all. My current venture has customers and is profitable, albeit still relatively early.

    “That’s great, and the world needs people like you, but you should acknowledge that your experience probably colors your view of the patent system.”

    Its not just me. Consider all the large companies that enter patent cross-licensing agreements. The very existence of these agreements is a repudiation of the value of patents. These companies are willingly giving up the right to sue others for patent infringement in return for the assurance that they will not be sued. They are essentially creating a restricted little environment between specific groups of companies where there are effectively no patents. If they believe patents are beneficial, why would they do that?

    “3. Further, it’s not apparent from your Wikipedia entry that any of the ventures you have founded have ever turned a profit or generated a return for investors. ”

    Some of them didn’t, some of them did. As I mentioned, my current venture is profitable, and several of my past companies were sold.

    “But you need to understand that the capital pool you accessed was generated by profits from other ventures, many of which were/are protected by patents.”

    Many of those companies may have been forced to acquire patents because of the broken patent system as a defensive measure, but this is no justification for the system itself. Companies like Microsoft did just fine prior to 1990 when software patents became popular.

    “There is nothing inherently evil about patents, including software patents.”

    This does not follow from any of your previous statements.

    “4. Software patents are, in many ways, an attempt to address precisely the same problem you attempted to address with your FairShare project.”

    I have no doubt that the original intent may have been good, but as they say, the road to hell is paved with good intentions. On balance, software patents do far more harm than any good they might do, and I’m unconvinced that they’ve ever done any good (where I define “good” to be promoting innovation).

    “Your world view may change if you ever get involved in developing software that gets embedded into particular product(s), which are then manufactured and sold.”

    That is similar to what I do now, and it has not changed my view.

  91. @Thatcher

    Thanks for the thoughtful feedback rather than ripping my eyes out. You are entitled to your view that circuitry should be excluded from patent protection, but understand that such a view is revolutionary, not evolutionary. Circuits are classic patentable subject matter: tangible products that cost gobs of money and time to develop and are extremely easy to copy. This is precisely what the patent system was developed to inhibit. Further, copyright law is woefully inadequate to deal with circuitry. I may just be old and stuck in my ways, but I don’t see this as being viable.

    I’ve read a few of the historical “patents in general are harmful” memes. Without exception, they are all complete rubbish. Your assertion that “aviation progress in the US was stagnant until Congress invalidated the Wright Bros patents” is wholly factually incorrect. In fact, there was active progress in aviation in the U.S. and in Europe even while the Wright brothers were asserting their patents. And Congress did not invalidate their patents; they implemented a compulsory licensing scheme when WWI made aviation production a matter of national security. I represented the Wright Brothers in several lawsuits so I should know (Orville had terrible body odor). Here’s a Wikipedia link in case you would like to fact-check:
    http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war

    I think people who are not patent attorneys or otherwise intimately involved in the patent system fail to develop a full appreciation for the system, probably because most of their interaction with the system involves running into blocking patents or receiving licensing requests. The last time I checked fewer than 1 out of every 1000 patents is ever litigated, and something like 90% of patent lawsuits settle before trial. That’s a lot of public disclosure bang for very little buck.

    The patent system is not perfect, but compared to any other legal and economic regulatory system it is a smashing success. The U.S. has led the world in technology development since the 1952 patent act was implemented, back when I was middle-aged, and our technological progress since the Federal Circuit strengthened patent laws in the 1980s has been remarkable. Walk around your house or office and look at the technology and tools you use, or look at the electronic toys your great-great-great grandkids have. None of this stuff existed in the 1980s. You can chalk this up to coincidence if you want, but IMHO having the correct innovation policy in place was a key driver.

    Certainty in property rights, both real and intellectual, provides incentives for investment and economic development. The U.S. and the Soviet Union took two very divergent paths in terms of economic development following WWII. We recognized certain property rights in real and intellectual property; they did not. In the end, the Soviet Union failed because our economic system trumped theirs. I can see no wisdom in scaling back our patent system, which helped drive our economy.

  92. hey, who forgot to invite the “software = math(s)” crowd to the party?

    oldtimer and pop – I have my eye on you – playing all nicy-nice.

  93. POP:

    You’ve got me ROFLMAO:

    “I could almost cry. I had written about an hour’s worth of material when I hit the wrong button and …”

    Come on. Isn’t it “obvious”?

    All you nee do is write a small script and tie it to a hot key. Every time you hit the hot key, your computer does a select-all (Ctrl A) and copy to clipboard (Ctrl C) followed by an automatic append to the end of some notebook file you have pre-designated and then pop back to your original window. It’s only a couple of lines of code. Am I going to patent it? No. It’s not worth it. Can’t be policed. But here you are talking about “true” innovation and jimmy rigging, etc, and you can’t even see the “obvious” answer to a simple and common problem. D’oh. This proves my point that even the simplest of things may not be “obvious” until someone else gives you the answer.

  94. -Step Back,

    That wouldn’t really help because I hit the WRONG key! What am I going to do, map it to every key on the keyboard? What a bunch of worthless snark.

  95. Gene,

    I am one of the world’s leading authority on algorithms. My magnum opus, the three volume work the “The Art of Computer Programming,” is the most important reference work on algorithms. I also developed the mathematical text formatter TeX and the idea of “literate programming”.

    Supporting evidence of my position are the following distinctions:
    National Medal of Science
    Member, National Academy of Sciences
    Member, National Academy of Engineering
    Fellow, American Academy of Arts and Sciences
    Turing Award, Association for Computing Machinery
    18 Honorary Doctorates

    In the period 1945-1980, it was generally believed that patent law did not pertain to software. However, it now appears that some people have received patents for algorithms of practical importance – e.g., Lempel-Ziv compression and RSA public key encryption – and are now legally preventing other programmers from using these algorithms.

    This is a serious change from the previous policy under which the computer revolution became possible, and I fear this change will be harmful for society. It certainly would have had a profoundly negative effect on my own work: For example, I developed software called TeX that is now used to produce more than 90% of all books and journals in mathematics and physics and to produce hundreds of thousands of technical reports in all scientific disciplines. If software patents had been commonplace in 1980, I would not have been able to create such a system, nor would I probably have ever thought of doing it, nor can I imagine anyone else doing so.

    I am told that the courts are trying to make a distinction between mathematical algorithms and nonmathematical algorithms. To a computer scientist, this makes no sense, because every algorithm is as mathematical as anything could be. An algorithm is an abstract concept unrelated to physical laws of the universe.

    Nor is it possible to distinguish between “numerical” and “nonnumerical” algorithms, as if numbers were somehow different from other kinds of precise information. All data are numbers, and all numbers are data. Mathematicians work much more with symbolic entities than with numbers.

    Therefore the idea of passing laws that say some kinds of algorithms belong to mathematics and some do not strikes me as absurd as the 19th century attempts of the Indiana legislature to pass a law that the ratio of a circle’s circumference to its diameter is exactly 3, not approximately 3.1416. It’s like the medieval church ruling that the sun revolves about the earth. Man-made laws can be significantly helpful but not when they contradict fundamental truths.

    Congress wisely decided long ago that mathematical things cannot be patented. Surely nobody could apply mathematics if it were necessary to pay a license fee whenever the theorem of Pythagoras is employed. The basic algorithmic ideas that people are now rushing to patent are so fundamental, the result threatens to be like what would happen if we allowed authors to have patents on individual words and concepts. Novelists or journalists would be unable to write stories unless their publishers had permission from the owners of the words. Algorithms are exactly as basic to software as words are to writers, because they are the fundamental building blocks needed to make interesting products. What would happen if individual lawyers could patent their methods of defense, or if Supreme Court justices could patent their precedents?

    I realize that the patent courts try their best to serve society when they formulate patent law. The Patent Office has fulfilled this mission admirably with respect to aspects of technology that involve concrete laws of physics rather than abstract laws of thought. I myself have a few patents on hardware devices. But I strongly believe that the recent trend to patenting algorithms is of benefit only to a very small number of attorneys and inventors, while it is seriously harmful to the vast majority of people who want to do useful things with computers.

    When I think of the computer programs I require daily to get my own work done, I cannot help but realize that none of them would exist today if software patents had been prevalent in the 1960s and 1970s. Changing the rules now will have the effect of freezing progress at essentially its current level. If present trends continue, the only recourse available to the majority of America’s brilliant software developers will be to give up software or to emigrate. The U.S.A. will soon lose its dominant position.

    Please do what you can to reverse this alarming trend. There are far better ways to protect the intellectual property rights of software developers than to take away their right to use fundamental building blocks.

    Sincerely,
    Donald E. Knuth
    Professor Emeritus

  96. Paolo-

    You say: “It costs $0 to obtain a copyright in a software program or in anything else.”

    Please visit the US copyright website and you will see that it costs $45. Yes, a copyright is obtained upon creation and fixation in a tangible medium, but you cannot enforce your copyrights without a federal registration in the US. What good is a right that is unenforceable? None. So go ahead and convince your unsophisticated investors that you don’t need to even obtain a $45 copyright to have an asset. Then sell them a bridge in Brooklyn.

    -Gene

  97. POP-

    For the record, I just want to make clear I have never said it is easy to reverse engineer code. With respect to trade secrets it doesn’t matter whether it is difficult or easy. Once the product is out in the market and it can be reverse engineered the trade secret is lost. So reverse engineering code may not be a very practical use of time, but the fact that it can be done means there is no trade secret.

    On a separate note, I would love to meet investors willing to give $15 million to a company that has only copyright and trade secret assets. They are no doubt easy marks for funding and should be easily impressed by those who are innovators and have real assets that can be used to exclude others and create a competitive advantage.

    -Gene

  98. -Donald Knuth impostor

    I seriously doubt you are actually Donald Knuth. All you have done is copied and pasted a letter he wrote and thrown your header on it. While I appreciate the sentiment you are trying to provide, at least have the respect to admit that you are not really Donald Knuth.

  99. -Gene

    Likewise, I never said investors would be willing to provide capital without patents, that was somebody else, unless you were addressing the issue in general. Perhaps you were eluding to fact that if software patents were severely restricted as I have outlined then most software products would be without patents and hard to find funding?

    It is hard for me to imagine that Every software program that is worthy enough to hit the marketplace must have some patent worthy process in it. Going on that rule, you either have less programs or, as the case is now, the patent becomes watered down to the point where it is given to everybody for any reason even for the most trivial of matters and causes a lot of headaches for people trying to write new programs.

    -pop

  100. POP-

    I agree. Not every software program is worth of going through the patent process. I would also agree that most software patents are crap, which is something we have talked about before. Nevertheless, if you are building a business based on a new and non-obvious core software program/process, patents should be considered because if they are available they can entice sophisticated investors to provide funding, which allows for business growth/expansion.

    I know you never said that, just weaved it into the comment. Sorry if it sounded like I was suggesting that you said that.

    Cheers.

    -Gene

  101. -Gene

    I’m not a man who is unwilling to accept the world he lives in. I always liked the saying, “you goto war with the army you have, not the army you want”. If I had written a program that was patent worthy I would certainly get that patent because you goto business with the patent system you have not the patent system you want. I don’t know if the program I am working on right now is going to merit any patents because it is just too early in the process to know, but I like I said, I’m not going to charge into battle without my armor just because I don’t think people should use guns.

    Cheers

    -POP

  102. “Of course innovation requires funding. You can choose to ignore the obvious truth to that statement if you like, but I chose not to ignore reality.”

    The question is what is innovation? Is there anything innovative in Facebook or Twitter? From a computing science perspective, there isn’t. Most patents on software are like patents on plots in literature. There are billions of books, but fundamentally, there are only a few kinds of basic plot types. With software, there are a few fundamental concepts and a lot of different implementations. Some things in software are truly innovative but most are not. You say that copyright isn’t enough, but just look at Windows, it’s the most popular software in the world but has yet to be suitable cloned. And there’s not a lot really patentable in Windows, it’s all standard computing science concepts from the 70s.

    My question is, what about Hollywood? They fund multi-million dollar projects everyday without any patent protection at all. They just have copyright, but that’s apparently a foolish thing to base your money on. Yet, producing software is much more like producing a film than it is producing the next drug or widget.

  103. > In reality, it is you who are terribly naive and uniformed. If small business creates a revolutionary
    > technology and does not obtain a patent then Mega Corp will simply copy it, run it into its distribution
    > chain, charge less because they have not had to lay out the creation costs and put small business out of
    > business.

    Well, since we’re mainly talking about software here, let’s look at that specifically. You said “copy,” which implies that Mega Corp simply took the app and replicated it at zero cost. The only way to do that would be to literally copy the actual source code, which is not distributed (unless the app is open-source anyway, which is an entirely different scenario again). But literal copying of source is already illegal under copyright law, no? And the aforementioned “trade secrets” protection, even if weak, still exists.

    OTOH, if Mega Corp is simply copying the concept, the still have considerable costs to hire developers to write the same app from scratch (or to reverse engineer it, which is still not free).

    In either case, even IF Mega Corp successfully replicates the product at a marginally smaller R&D cost, there is *still* no guarantee that they can produce and sell it in such a way that “beats” the original developer. And that’s because there are so many other factors involved in competition.

    To use an imperfect example / case-study… Oracle was able to *literally* copy Red Hat Enterprise Linux and create a completely binary compatible Linux distro (since RHEL is open-source). By your theory, they should be killing Red Hat, since they are selling a product that they didn’t have to invest R&D money in. But people are still buying RHEL from Red Hat, and nothing I’ve seen or heard suggests that Oracle Linux is gaining any significant market share. In fact, at least one article suggests that RH is growing even among Oracle customers.

    http://news.cnet.com/8301-13505_3-10173701-16.html

    In fact, the very existence of Red Hat (or any other vendor of Open Source software) seems to disprove the assertion that patents are needed to produce – and profit from – innovative software.

    Your obsession with one issue – at the expense of all others – is what makes your position naive. You’re probably a brilliant patent attorney (or not, who knows?) but you have a bad case of tunnel vision.

  104. “That wouldn’t really help because I hit the WRONG key! What am I going to do, map it to every key on the keyboard? What a bunch of worthless snark.”

    POP,

    You hit the wrong key at time T(n).
    You hit all the right keys between T(0) and T(n-1).

    If one of those correct key hits had been the hot key and done close to t=T(n), then a substantial portion of your work would have been saved and you wouldn’t have had to re-type all over again.

    Not only do you irrationally pooh pooh patents for software-related inventions, it seems you can’t even understand a basic time line.

    Let me give it to you in a time line picture:

    You started You hit You hit You retrieve data
    typing correct hot erase key of t=0 to t=n-10
    here key here here here
    | | | |
    V V V V
    0………………..(n-10)…………..(n)…………..(n+1)……..

  105. Oh well, this is not a WYSIWYG editor

  106. retry:

    You started …….You hit …………You hit ………….You retrieve data
    typing ………….correct hot ………erase key ………of t=0 to t=n-10
    here …………….key here …………here ………….here
    .|……………………. |………………… |………………. |
    V …………………..V………………. V………………. V
    0………………..(n-10)…………..(n)…………..(n+1)……..

  107. “Funny how you and others are only focusing on one aspect and taking everything out of context.”

    As the paragraphs following this quote demonstrate quite adequately, your argument against Ian hinges on the “everyone knows” statement that I drew out for the sake of brevity. I assumed that anyone reading my post would be following the exchange. Presumably you know how this works.

    A quick note about how technological change happens is in order. It progresses by building upon previous efforts and synthesising sometimes disparate ideas. For example, the internal combustion engine combined, amongst other devices, the piston, the swamp gas detector and the perfume atomiser. If patents were pain-free, then they would be of no use to anyone, given that they operate on the basis that inventors can prevent others from acting in certain ways, namely infringing their patents.

    Much of the rest of your response here is rather specious, I don’t feel a need to respond to it other than to point that out.

  108. Gene, you are in all probability right that the comment above was note posted by Donald Knuth. It does strike me as pretty convincing, and it seems to me that Professor Knuth’s CV gives him a certain credibility. Maybe you’d like to comment on the points from his letter?

  109. [...] mentods, as well as software and other processes.  As stated by Gene Quinn at IPWatchdog (Praying the Supremes Get Bilski Right in 2010): So in order to kill pure business methods the Federal Circuit shot at and killed much more.  In [...]

  110. I think it’s reasonable to consider Professor Donald Knuth an innovator, based on TeX, let alone the rest of his illustrious career. What does it say for your position that he is against software patents?
    Quoting him..
    “Therefore the idea of passing laws that say some kinds of algorithms belong
    to mathematics and some do not strikes me as absurd as the 19th century
    attempts of the Indiana legislature to pass a law that the ratio of a
    circle’s circumference to its diameter is exactly 3, not approximately
    3.1416. It’s like the medieval church ruling that the sun revolves about
    the earth. Man-made laws can be significantly helpful but not when they
    contradict fundamental truths.”

    From a letter he wrote to the patent office, linked here:
    http://www.pluto.it/files/meeting1999/atti/no-patents/brevetti/docs/knuth_letter_en.html

  111. Phillip-

    You say: “the aforementioned “trade secrets” protection, even if weak, still exists.”

    That is not correct. The whole point is that trade secret protection ceases to exist once the software is released. So it would not be weak, it would be non-existent.

    You say: “literal copying of source is already illegal under copyright law, no?”

    Yes, but in the US you could only make a claim for copyright infringement in federal court and can only access federal court if you have a federally registered copyright.

    What a copyright does not cover, however, is someone creating software that has identical functionality if the code is different. Given there are a multitude of ways to write code a copyright in software offers extremely little protection. It only provides protection from cutting and pasting. That is why a patent, if available, provides rights that are much stronger. You protect the functionality regardless of the code.

    You say: “the very existence of Red Hat (or any other vendor of Open Source software) seems to disprove the assertion that patents are needed to produce – and profit from – innovative software.”

    How is that true? Red Hat holds many patents and have an aggressive patent strategy. They understand the importance of patents. They have patents to ensure they can keep doing what they want to do, and to have the ability to dictate terms for participation in the open source endeavors they pursue. Patents are a tool, and there are many ways to use the tool.

    You say: “you have a bad case of tunnel vision.”

    Not true. You can believe what you want, but those who refuse to understand patent basics and appreciate the many different reasons for owning patents are the ones with tunnel vision.

    -Gene

  112. Bob-

    You say: “Much of the rest of your response here is rather specious, I don’t feel a need to respond to it other than to point that out.”

    You and others do realize that when you say “I could point it out but choose not to” that it is obvious that you are bailing and don’t have the ability to articulate a logical response, correct?

    Knock yourself out thinking that my “everyone knows” statement is over broad. Those in the industry with real experience understand that it is 100% correct. I really don’t care whether you or anyone else wants to accept that. Truth is what it is, and I am correct. Those who have sought funding from investors know that you cannot raise funds from sophisticated investors without patents.

    -Gene

  113. Stefan-

    I was not the one who said the post was not by Donald Knuth, that was POP. I agree with POP though. It seems unlikely it was posted by Knuth given that it is just a cut and past of a letter her wrote back in 1994.

    I disagree with some of what Knuth says, but not a lot. He focuses on algorithms, and it is certainly true that algorithms are the building blocks of software. The focus of the letter seems to suggest that algorithms are being patented, and I don’t know of any case where that happened then or now.

    One thing he says is clearly wrong. He says in this 1994 letter: “Congress wisely decided long ago that mathematical things cannot be patented.” That is an incorrect statement of law. There is no prohibition of “mathematical things.” You cannot patent a mathematical equation, but the Supreme Court has ruled that the use of a mathematical equation in an overarching process is patentable. The fact that a process of curing rubber requires use of a known equation does not mean that the equation has been removed from the public domain. It merely means that the commercial process that employs the equation cannot be followed identically without there being infringement. So it is not correct to say “mathematical things” cannot be patented. If that were true no electronics were be patentable, and that is simply not what the law has ever held or ever will hold.

    Software is not math. Software is a process of instructions that directions a machine to act in a certain manner. Mathematical influences are present in code writing, and mathematical principles are used to convert code into object code, but what is protected by patent law is the process or steps followed. Processes have been patentable since 1790 and will remain patentable, and processes that use mathematical equations or code written using mathematical logic are not mathematical equations in and of themselves. The law is clear, mathematical equations in isolation are unpatentable. A statement that blurs the lines using that clear, true statement to stretch into “therefore software is not patentable” is an incorrect statement of law.

    -Gene

  114. “Yes, but in the US you could only make a claim for copyright infringement in federal court and can only access federal court if you have a federally registered copyright.”

    Great, so software authors need to register their copyright. Next.

    “What a copyright does not cover, however, is someone creating software that has identical functionality if the code is different. Given there are a multitude of ways to write code a copyright in software offers extremely little protection. It only provides protection from cutting and pasting. That is why a patent, if available, provides rights that are much stronger. You protect the functionality regardless of the code.”

    It provides plenty of protection, because it means that Mega Corp still has to hire developers to sit down and do all this “duplicate functionality” stuff you’re talking about. The fact that they *can* duplicate functionality is orthogonal to your assertion that doing so is free (or cheap, however you want to look at it ).

    “How is that true?”

    From: http://www.redhat.com/legal/patent_policy.html

    “Subject to any qualifications or limitations stated herein, to the extent any party exercises a Patent Right with respect to Open Source/Free Software which reads on any claim of any patent held by Red Hat, Red Hat agrees to refrain from enforcing the infringed patent against such party for such exercise (“Our Promise”).

    So anybody can redistribute software which uses RH’s patented technology, and they don’t have to pay RH anything (they just have to release it under an Open Source license). This is what allows Oracle to redistribute a binary compatible version of RHEL with no problems, despite the fact that RH do own patents.

    So if your theory is true, why isn’t Oracle eating Red Hat’s lunch?

    Also, Red Hat – as a company – have been VERY outspoken against software patents, and according to their own press only pursue patents as a defensive strategy. But this company, who freely redistribute their code and who have this “public patent promise” got funding from plenty of “sophisticated investors” over the years.

    That anybody is making money from “selling” Open Source (and that they’re getting funding from “sophisticated investors” to do so) show conclusively that patent protected, proprietary code is not necessary in order to A. get funding, B. create innovative software, and C. make a profit.

  115. “You can believe what you want, but those who refuse to understand patent basics and appreciate the many different reasons for owning patents are the ones with tunnel vision.”

    Addendum: My argument is that software patents (at a minimum) should be eliminated (for reasons already covered). However, *while* they continue to exist, I don’t argue against pursuing them for “defensive” purposes, in a purely pragmatic sense. I’d rather see them eliminated so that the idea of pursuing “defensive patents” becomes moot, but for now we live with the system as it is, while working to correct it.

  116. Phillip-

    Your continued assertions that copyrights provide adequate protections are simply not accurate. There is no point in continuing the debate on that point. Copyrights are worth what you pay, and in the US that is $45. You might as well get them, but to delude yourself into thinking they are an adequate replacement for the rights a patent grant is simply incorrect.

    You can believe what you want and do what you want, but clients who listen to me will have far stronger rights and can simply ignore your copyrights and there will be nothing you can do to stop them from copying your software and stealing your market. If you are OK with that, go for it!

    -Gene

  117. @ Phillip:

    “That anybody is making money from “selling” Open Source (and that they’re getting funding from “sophisticated investors” to do so) show conclusively that patent protected, proprietary code is not necessary in order to A. get funding, B. create innovative software, and C. make a profit.”

    I wouldn’t get too far out there on holding Red Hat out as an example of how great it is for the company to effectively disclaim IP assets. Red Hat pays no dividends. It went public in 1999 at $14/share, was a 3xer out of the gate and was a quick 8xer to 100+ by the end of 1999. It collapsed to $5.00/share in 2000, down to $3.50/share in 2001 and then climbed through the teens and $20s until it gapped up in 2009 to $30/share. Net-net, over its entire lifespan this company has not made a single dime for investors other than the insiders who got IPO stock.

    Even as badly as MS stinks, anybody who bought MS in the ’80s or early ’90s is probably retired.

  118. Gene: “[Stephan Kinsella] is incapable of making logical arguments.”

    HA HA HA. This ridiculous assertion is coming from a LAWYER who seriously thinks that “everybody knows” is an argument, wouldn’t know an argumentum ad populum if it hit him in the face, uses all kinds of logical fallacies in support of his false conclusion, and works from the conclusion backwards to the premises rather than starting from the premises and building a syllogism that results in the conclusion.

    GIVE. ME. A. BREAK.

  119. p. morrison (FL),

    Thank you for your link at comment #110
    At least now we know where the text came from (from the League For Programming Freedom).

    Assuming that the posted text is that of the famous Donald Knuth, the mere association of his name to the propositions in the text do not render them true.

    Use of Knuth’s name and fame to prop up the argument is merely a rhetorical trick known as “appeal to authority”. It’s a cheap parlor trick and nothing more.

    Let’s take a closer look at some of the things that Knuth is alleged to have said :

    1) “In the period 1945-1980, it was generally believed that patent law did not
    pertain to software.”

    Absolute nonsense. The writer arbitrarily picked 1980 because Diamond v, Diehr came down in 1981. However, during the many years before his case reached the US Supreme Court, Diehr had already developed the belief that software-controlled process is patentable and that is why he filed his patent application and that is why he fought for it all the way up to the US Supreme Court. Diehr was not alone. Many inventors came up with software-assisted inventions and filed for patents. The fact that Knuth believed something did not make it “generally believed”. Generally believed by whom? Another cheap parlor trick.

    2) “If software patents had been commonplace in 1980, I would not have been able to create such a system, nor would I probably have ever thought of doing it, nor can I imagine anyone else doing so.”

    More total nonsense. What is the writer trying to have us believe, that Knuth is an idiot? That he could not even create such a system in his head? That his imagination is so narrow that he cannot perceive of anyone in the entire world, even anyone in countries that don’t have patents, doing it?

    Software related patents were commonplace in 1980. A patent for a microprocessor that electronically manipulates signals representing software symbols is a software related patent. I forget exactly when the Intel 4040 came out, but surely it was well before 1980. All the computer chip companies were patenting their stuff left and right well before 1980. It was software. They just chose to give it another name. But the rose smells just as sweet.

    3) “To a computer scientist, … every algorithm is as mathematical as anything could be. An algorithm is an abstract concept unrelated to physical laws of the universe.”

    Oh really? How about a computer scientist who is choking on a piece of food lodged in his throat? Is the Heimlich maneuver algorithm merely abstract to that person? Will the Pythagorean algorithm serve just as well? Give us a break.

    The so-called computer “scientists” would be mere nobodies if it weren’t for the thousands of inventions made beforehand in semiconductor physics and circuitry, in magnetic data storage and so on and so on. There is no dividing line where hardware ends and software begins. It’s all part of a seamless fabric.

    The electrons move nonetheless.
    It’s as basic as that.

  120. “I am glad you mentioned Stephen Kinsella, who has been banned from commenting on this blog because he is a liar.”

    What this sentence actually means is “I banned Stephan Kinsella because he presents irrefutable arguments that I can’t answer to, so my psychological defenses of my beliefs kicked in and I just ban him and call him names.”

    Please, do me the honors of banning me too.

  121. “If Watt had not gotten patents for his improvement “algorithms”, others could have easily taken his ideas and paid him nothing for them.”

    See, here’s the *perfect example* of how propaganda works. Your statement has the unstated assumption that it is a BAD THING when someone takes an IDEA and uses it without paying someone else, which in itself implicitly assumes that IDEAS and PROPERTY are somehow equivalent. By making a statement that *assumes* something false or unproven, your bias seems “natural” to the unattentive reader.

    But, of course, you can’t dodge *my observational skills*.

    Anyway, the unstated assumptions in your sentence are ridiculous and easily disprovable, but *I don’t need to disprove them* because you HAVE NOT PROVEN THEM to begin with.

  122. Blind Dogma,

    Care to clarify for us how exactly Stephan Kinsella is biased? Oh, please start with a *dictionary-compatible definition of bias*.

  123. @pop

    I thought this discussion was about patents, not OS security. But I will bite….
    Backwards compatibility? Try running Snow Leopard stuff on mac OS 9. Or how many things are broken by running kernel 2.4.0 instead of 2.6.x?

    Oh great call about not supporting canvas. that is absolutely true. But I think you will find that canvas is part of HTML 5. We are pretty backwards in Australia, they haven’t released that here yet. Seriously, move on. DOS was ‘stolen’ a quater of a century ago.

  124. Rudd-

    I use no logical fallacies, and we both know that. You just don’t like the truth, and would rather put your reliance on a liar like Kinsella. That is pathetic, and so are you.

    -Gene

  125. Rudd-

    You can ban yourself, and I hope you do. Simply don’t return.

    -Gene

  126. “I use no logical fallacies, and we both know that.”

    Yeah you do — as has been pointed out in *numerous occasions* by *numerous individuals* here. I am about to point another one out in the next paragraph. It’s always funny to see someone say “No, I didn’t steal the cookies, mom” with a mouth full of crumbs.

    “You just don’t like the truth, and would rather put your reliance on a liar like Kinsella.”

    You know, argumentum ad infinitum is a fallacy (there you go YET AGAIN, another fallacy), and your insult “you don’t like the truth” doesn’t even *reach* the level of being a fallacy.

    You were repeatedly asked to *prove this slanderous claim of yours* that Kinsella is a liar, but when confronted with that demand, all you can muster is “Kinsella is a liar!”. That might work in a court of law or other assorted places where idiots sit down and play important people, but it’s not a rational argument.

    “That is pathetic, and so are you.”

    Ah, the good old “NO U!”. I STAND HUMBLED AT YOUR GREATNESS!

  127. Actually, Rudd-O, Gene has proven the lie. You can search Gene’s archives here at IPWatchdog as the actual emails from Mr. Kinsella were shown.

    You are going to have to re-check the cookie jar – no cookie crumbs in Gene’s mouth.
    So Gene’s statement regarding reliance on Kinsella is NOT a fallacy, nor does the catchy Latin phrase “argumentum ad infinitum” really apply.

    Would you like a nice glass of Kool-aid to wash down that taste of foot?

  128. Here are some examples of how software patents tamper innovation:
    http://eupat.ffii.org/patents/effects/

    Also, I am a software engineer and I feel exactly like pop said on comment #12 about writing software without having to worry about existing patents. It is almost impossible nowadays to write a whole program without infringing.

  129. Thank you for taking the time to respond to my post and for your views on Knuth’s letter.

    You said something in another post that I think is crucial:
    > Software is not math. Software is a process of instructions that directions a machine to act in a certain manner.

    Knuth’s argument in the letter is precisely that software is math. It is a subtle point, and one that even most computer science students don’t receive a lot of education in.

    As a hokey example, take ‘a = b + c’. Without knowing more about it, this could be a fragment of:
    a) algebra, b) Fortran, c) Javascript or d) C Language.

    In case a, it is an algebraic equation. In cases b-d, this would be ‘instructions that direct a machine to act in a certain manner’. (I revised your words slightly, I hope you don’t mind).

    Your claim is that a) is not patentable (‘You cannot patent a mathematical equation’), but that b-d are. Knuth’s claim is that they are all of a piece. Knuth makes more logical sense to me.

  130. Pmorrison-

    You are certainly entitled to believe Knuth makes more sense. I obviously disagree. It is also important for you and others to realize that from a legal standpoint Knuth is wrong. I don’t begrudge him his opinion or that he thinks it should be one way versus another, but to use your hokey example, algebra is not patentable, but a program written using fortran, C and/or Java could be patented if it is new and non-obvious.

    I realize that Knuth’s position is software = math, but legally that is an incorrect statement. I know folks don’t like that, but it is not open to debate. From a legal standpoint software is not math, so when the law says mathematical equations are not patentable that does not mean, never has meant and never will mean that processes are unpatentable even when the process is a software program.

    -Gene

  131. Rudd-

    You should be humbled. I am right and you are wrong, and Stephan Kinsella is a liar. Take a look at:

    http://www.ipwatchdog.com/2009/09/30/responding-to-critics-my-view-on-patents-innovation/id=6421/

    See comment 62 and 64. He lied openly, I proved it and then he back tracked. I have no use for him, his games or people like him, and you are just like him. You blindly follow his teachings as if he is a prophet, and he is nothing more than a snake oil salesman.

    One thing, you are definitely correct to point out that my saying you don’t like the truth is not a fallacy.

    Please cease posting here. Go somewhere that truth doesn’t matter. You are embarrassing yourself.

    -Gene

  132. HAHAHA! On comment 65 of that very page, YOUR OWN GROUPIE shuts you up, because it’s pretty clear that what Stephan said is true under any reasonable interpretation, and that you are misinterpreting it to believe that he’s denying you ever asked him to debate.

    And you have the BRASS ONES to call Stephan a liar? On the basis of YOUR rather deluded misinterpretation of what he said, that has NOTHING TO DO WITH HIS WORK?

    “You are embarrassing yourself.”

    To quote the wisdom of the great Gene: **NO U.**

  133. Gene, I agree with you in that there is no debate in whether software is math or not. It has been classified as math with formalizations such as lambda calculus way before software patents.

    “From a legal standpoint software is not math”
    The law appears to be wrong then, and that’s what we are trying to change here. We are trying to adjust the law to reality.

    Also, regarding your debating skills, I cannot see how you can say something like

    “Whenever I do this I receive e-mails from folks who agree with me asking why I even engage with those who clearly have no interest in engaging and refuse to actually have a fact-based, reality-based, historically accurate debate”

    and then puke unjustified statements like

    “If you are against software patents you are not an innovator”.

    Please, be consistent.

  134. Thank you again for responding. I find the discussion enlightening, which is what I’d hoped for in commenting in the first place.

    > I realize that Knuth’s position is software = math, but legally that is an incorrect statement.

    Math, Computation, and Law are all human artifices, and all can be defined and redefined as we learn more about the world, and as we decide what matters. Knuth argues that law should be defined in a way that treats software as a form of mathematics, which is consistent with his way of thinking… and he is one of the intellectual giants of the field. I think he sees the matter as clearly as any of us, and more so than most of us.

    You seem to argue that it is computation and math that need to be redefined for law’s sake. I can see how this has appeal to property owners from the point of view of ‘software as intellectual property’, and to you given the nature of your busienss.

    However, it ignores the principles of that property’s creation, according to one of the field’s leading lights (there are other innovators against patents, but I don’t want to drag say Stallman or Torvalds into this, as that’s more likely to generate heat than light… and don’t need to since there’s a fundamental principle Knuth is addressing that is enough for this discussion). I think a reasonable judgement on the matter must consider the nature of the property, and you’d be hard pressed to find someone who understands software better than Knuth. He argues that the law should be redefined. If the matter has risen to the highest court in the land, it’s not unreasonable to think that reasonable people could disagree about the matter. And there’s certainly evidence to the contrary of your claim that “If you are against software patents you are not an innovator”.

  135. FO-

    Whether you want to acknowledge it or not, software is not math and that is a true and correct legal statement and it is a true statement outside of law.

    I do not “puke” unjustified statements. Those against software patents are not innovators, period. The fact that you don’t like it doesn’t change the reality that I am correct. Those against software patents want to be able to “innovate” by doing whatever they want and if that means doing what someone else did first and patented then they have some natural right to do so. Unfortunately, in order to innovate you need to be first, not second. So those who are against software patents are universally not innovators and not interested in being innovators. They simply want to copy and steal without penalty. That is not an innovator.

    -Gene

  136. Rudd-

    Apparently you cannot read. If you could you would see that what Kinsella said was a lie. I truly feel sorry for you. I can’t imagine how you go through life. You need help.

    -Gene

  137. Pmorrison-

    You say that there is evidence to rebut my claim that those against software patents are not innovators, yet you simply reach that conclusion without support, evidence or argumentation. Naked conclusions that are unsupported by reality are not helpful.

    Why is it so hard for folks to understand that to innovate that means you need to be first, not second? The reality is those who write software code want to believe they innovate, yet they want to be able to copy others and disregard their rights. Those are logically and intellectually inconsistent. You may want to be an innovator, but those who copy are not.

    When talking about Knuth you say that he is “one of the intellectual giants of the field. I think he sees the matter as clearly as any of us, and more so than most of us.”

    Perhaps he is an intellectual giant, but he is wrong on the law and wrong on reality. Software is not the same as math. Perhaps he sees things more clearly than you, but not me. The constant putting forth of him as a god that knows better is irritating. He is wrong and you and others would do well to not blindly follow those who are wrong. Everyone wants to establish him as an expert and then rely on his incorrect statements as if that ends debate. He is wrong, smart people can be wrong and naked citation to what others say as alleged support is not debating. It is dodging debate and proves that those thrusting the “superiority of authority” do not have the ability to engage intellectually themselves and need to rely on the words of another. That is pretty sad.

    -Gene
    -Gene

  138. Gene,

    Software isn’t math? Please explain your reasoning on this point. The Pythagorean theorem shouldn’t be patentable, but basic programming algorithms should? Lawyers’ processes shouldn’t be patentable, but something as basic as double-click should?

    You’re correct that software patents promote innovation- IF you’re a big company with thousands of dollars to spend. What about open source projects? Most open source projects can’t afford thousands to spend on a patent.

    Also, please refrain from insulting people. All “NO U!!” and “LOL UR SO DUMB” accomplishes is making you look like a child.

    ~Bob

  139. Bob-

    First, I am not the one saying “NO U” or “LOL UR SO DUMB.” That is Rudd who says he is quoting me, but you will not find me having said either of those things. I would agree, Rudd is quite childish.

    Here is what I wrote some time ago about why software is not math. I explain it often. See:

    http://www.ipwatchdog.com/2008/12/15/computer-software-is-not-math/id=1040/

    In a nutshell, it is erroneous to say that the law prevents the patenting of math and software is math so the law prevents the patenting of software. The law prevents the patenting of mathematical equations. Since software is not a mathematical equation you cannot make the leap that so many want to say. You cannot solve a software program, and you cannot reduce a software program like you can with an equation, which can be solved.

    There is no doubt that software uses mathematical influences in terms of logic, and for software to be usable must be translated into machine readable code, but that does not make it math. Software is a series of instructions. When you patent software you do not patent the code, you define and protect the series of instructions.

    Now, in terms of specifics. You have never heard me say that algorithms should be patentable. They should be. But if you string algorithms together into a program the entire resulting series can be patented. Algorithms are steps, and if you put enough steps together so that what is resulting is new and unique then you have something that can be patented.

    You also have never heard me say that double-click should be patented, and you never have heard me say that the Amazon one-click should be patented. You make the common mistake of saying that if something is patentable subject matter it is patented. That is but one of the inquiries, and a threshold one at that, that make up the patentability requirements. All requirements need to be satisfied before an invention can be patented, and the problem with offensive software is that it is not new and/or is obvious. That does not mean software should not be considered patentable subject matter, it means the USPTO needs to do a better job.

    You also did not hear me or read me say that lawyers process should be patentable. If the process is useful, new and unique then it should be patented, and is. That does not mean all processes should be patentable.

    I would appreciate it if you did not put words in my mouth, and if you are going to attempt to please at least accurately state what I have said. If you read what I wrote you would understand what I am saying, so I have to suspect you have a certain agenda. But then again, if you were reading you would know it was Rudd, not me, that made the statements you found childish.

    -Gene

  140. Quote from Gene –

    “Why is it so hard for folks to understand that to innovate that means you need to be first, not second? The reality is those who write software code want to believe they innovate, yet they want to be able to copy others and disregard their rights. Those are logically and intellectually inconsistent. You may want to be an innovator, but those who copy are not.”

    I accept the argument that if I do something that has already been done, then I am not innovating, however, that does not necessarily mean that I am copying either. I don’t really like people who use dictionary deffintions, but I see no better way to articulate a word we all the know the meaning of. What does it mean to copy according to Webster dictionary…

    “an imitation, transcript, or reproduction of an original work (as a letter, a painting, a table, or a dress)”

    If I have no knowledge of the original, then I cannot by definition, knowingly be copying it can I? Actually by this definition, just because something is a copy doesn’t mean that it was copied. I may not always innovate, but I never copy. The two things are not forever tied together and I wish you would stop doing it.

    If I am writing a program, and I implement a common sense solution to a problem, why should I be punished just because some parasite or major software company with their hordes of lawyers got to it first. This first come, first serve system we have rewards those who make real and meaningful contributions to society, but hurts masses of people when it rewards those who do nothing more claim monopolies on things that ought to be seen as obvious. The patent system is far too liberal in its policy on what is allowed to be patented and what is not. How can we expect a few thousand people to truly understand what they are looking at in a patent application when it may be technically above their heads even when not shrouded in legal speak?

  141. Gene,

    Thanks for the reply.

    Sorry if i misunderstood, i didn’t mean to be rude.

    Even if (in your opinion) software is not math, software patents still prevent innovation. For example, there’s a patent on online games. If someone invented a new type of card game(or something similar) and made it available to play online, they might be infringing on this patent. To me, it seems like things like this are preventing innovation, not accelerating it.

    Also, again, what about Open Source projects? It seems to me like patents are very detrimental to open source. When an open source project innovates, they can’t just get a patent because most open source projects can’t raise $15,000 or so to get a patent.

    ~Bob

  142. Thank you for the pointer to your article on why you believe software is not math. I am putting a placeholder here and will return to this topic once I’ve thought carefully about how to explain where I believe your understanding could be expanded. Meanwhile, I am thankful that the inventors of TCP/IP, HTML/HTTP, the von Neumann arcitecture and all of the other innovations that enable the conversation we are now having didn’t choose to patent their work.

  143. @POP re your comment #140 whose link is this:
    http://www.ipwatchdog.com/2010/01/05/praying-the-supremes-get-bilski-right-in-2010/id=8233/#comment-10318

    I think you are finally making some progress to understanding the situation in a bigger context when you mention the creation of a painting.

    I am going to get dinged into moderation purgatory for including one link up above, so I might as well take advantage and include many here.

    Please take a look at this painting:
    http://www.best-of-perigord.tm.fr/sites/semitour/cheval.gif

    That’s right; it’s a cave wall painting –and a pretty sophisticated one for its time. You can read more here: http://www.best-of-perigord.tm.fr/sites/semitour/anglais/lascaux2_uk.html

    (BTW Gene, when are you going to let us include real hyperlinks in our comments?)

    For thousands of years, despite the availability of paints and papyrus and canvas in place of cave walls, people all around the world painted flat images well into medieval times like this:
    http://essentialhumanities.net/images/paint3_31.JPG

    Then something amazing happened and everyone round the world almost simultaneously got the notion that they can paint three dimensionally like this:
    http://www.artnewsblog.com/famous-paintings/mona-lisa/mona-lisa-painting.jpg

    (Yup, the well known Mona Lisa as an example. You art historians out there can tell us who was the first to begin painting 3D figures in 3D surroundings.)

    Before that aha moment, no one was “innovative” enough to think of painting 3D-mentionally. After the “influence” of the first break-through, everybody fancied himself an equal innovator. But they were NOT! They were irreversibly infected by the historical and hindsight-infected gift bestowed upon them by the pioneering inventor.

    The same thing is often true in computer programming.
    You may well believe yourself to be a totally independent inventor (even if 2nd in time behind someone else). But you are not because the “influence” of the first breakthrough spreads around the world almost at the speed of light.

    I think enough has been said for this round.
    However, I’d like you to stare at this next painting and tell me what you glean from it:
    http://serendip.brynmawr.edu/local/pipe.jpg

    Would it be fair to say that the essence of the painting can be encoded as a bunch of mathematical pixels and then the painting is nothing more than a string of meaningless numbers?

    May the existential forces be with you :-)

  144. “You say that there is evidence to rebut my claim that those against software patents are not innovators, yet you simply reach that conclusion without support, evidence or argumentation. Naked conclusions that are unsupported by reality are not helpful.” – Gene

    Ian Clarke is an innovator (created freenet, an innovation). Ian Clarke is against software patents. Therefore not all who are against software patents are not innovators. Ian proved it already in an older comment.
    Also, you made the statement, you have the burden of proving it right, not Pmorrison of proving it wrong.

    “Why is it so hard for folks to understand that to innovate that means you need to be first, not second? The reality is those who write software code want to believe they innovate, yet they want to be able to copy others and disregard their rights. Those are logically and intellectually inconsistent. You may want to be an innovator, but those who copy are not.”

    Algorithms are created based other algorithms the same way as theorems are proved using other theorems. You can create a new algorithm using another, simpler, algorithm, and it still would be an innovation. Let me give you an example, the game Spore contained an innovative (no one has done something similar before and it is considered non-trivial) algorithm to generate dynamic 3d meshes and textures for the representation of biological creatures. This algorithm needed a very common an obvious step called the Marching Cubes (http://en.wikipedia.org/wiki/Marching_cubes), which has had a patent since 1985 (it has expired, but after the game shipped) and therefore an alternative solution to the same problem had to be found. So, this only meant a waste of time as the alternative solves nothing new. Now, the Spore algorithm is really an innovation (first implementation and not obvious) whereas the Marching Cubes is not (it is an obvious algorithm). Source: http://chrishecker.com/My_Liner_Notes_for_Spore

    “Whether you want to acknowledge it or not, software is not math and that is a true and correct legal statement and it is a true statement outside of law.” -Gene

    You say software is not math, but you don’t give any proof and your word is not enough. Computability Theory is the theory of finding an optimal algorithm for a problem, it is branch of Mathematical Logic and it has been studied since the independent formalization of algorithms as computations by Alan Turing, Alonzo Church and Stephen Kleene. These formalizations state that algorithms are isomorphic to mathematical entities. These mathematical entities are not an approximation, like it occurs in the case of physics, but isomorphic, meaning that every property that holds on the mathematical entity holds on the algorithm.
    An interesting example comes to mind that I would like you to address:
    lets say I have a lambda calculus interpreter in my program, or I use a lambda calculus based language like Haskell. So, I use a lambda calculus expression (mathematical expression) in this program to solve a problem and there is a patented algorithm for whom this expression is an isomorph of. Would I be infringing in that case? Because, you know, it’s only a mathematical expression.

  145. FO-

    You say: “You say software is not math, but you don’t give any proof and your word is not enough.”

    I never asked you to accept my word. I have explained over and over again why, but apparently you choose not to read those explanations. Your choice not to read my writing, which I provide a link to above, is not my problem. I did give proof, and your assertions to the contrary are simply incorrect. The question is why would you make such obviously and provably false claims. Is it because you didn’t read, or is it because despite reading you choose to say things that are incorrect in hopes of convincing others who don’t read that your baseless allegations are true.

    You say: “lets say I have a lambda calculus interpreter in my program, or I use a lambda calculus based language like Haskell. So, I use a lambda calculus expression (mathematical expression) in this program to solve a problem and there is a patented algorithm for whom this expression is an isomorph of. Would I be infringing in that case? Because, you know, it’s only a mathematical expression.”

    You would not be infringing because an algorithm cannot be patented. So your hypothetical makes an incorrect and obviously faulty assumption. I suspect you know that and are just trying to grandstand.

    -Gene

  146. -Step Back

    You either didn’t read or comprehend my post because the only mention of paintings in my post is nestled in a quote from the Webster dictionary as part of the definition of the word “copy”. I understand the point that you were trying to make, but I don’t agree with it. Influence is a good thing because it leads to further creativity and innovation. Even if you wanted to play the game of who influenced who and if a person was influenced or not then you still have to decide what caused the first person to come up with it. Did so many others come to the same conclusion because they were influenced by the original, or was it really just common sense and the original was just the first person to claim it?

    What about partial influences? What if the 2/3rd’s of the influence came from the public domain and common knowledge, but the other 1/3rd was influenced by somebody else’s innovation? How do you know that it wasn’t common sense and common knowledge that influenced the original, and if it was, then does that exonerate the people being accused of copying? How far down the rabbit hole do you chase the influence game?

    In addition, you say completely stupid things like this.

    “The same thing is often true in computer programming. You may well believe yourself to be a totally independent inventor (even if 2nd in time behind someone else). But you are not because the “influence” of the first breakthrough spreads around the world almost at the speed of light.”

    The speed of light? That kind of argument might make sense in the last 20 years, but not long before that. For centuries knowledge traveled around the world very slowly. Only in the age of the phone did things speed up , and it took the internet to make information transfer truly instant. Are you saying that all inventions made before the telephone don’t apply to that statement? It sounds to me like you are claiming that nothing can be independently discovered or invented because anytime such a thing happens it is instantly implanted into the minds of everybody on earth through some unknown mechanism.

    Your argument sounds plausible on the surface, but it is really just bogus and I wouldn’t be interested to see if anybody else agrees with you.

  147. I meant to say “would” be interested to see if anybody else agrees. Sorry about the typo.

  148. Gene,

    “I never asked you to accept my word. I have explained over and over again why, but apparently you choose not to read those explanations. Your choice not to read my writing, which I provide a link to above, is not my problem. I did give proof, and your assertions to the contrary are simply incorrect. The question is why would you make such obviously and provably false claims. Is it because you didn’t read, or is it because despite reading you choose to say things that are incorrect in hopes of convincing others who don’t read that your baseless allegations are true.”

    Sorry about that, I hadn’t seen your comment with the link when I was writing this response to your earlier posts. I will read it thoroughly.

    “You would not be infringing because an algorithm cannot be patented.”

    What about the Marching Cubes algorithm I mentioned earlier in my comment? Would you say it was wrongly patented? What’s the line between software processes and algorithms? Maybe the answer to these questions is in your explanation, which I haven’t read.

    “…is it because despite reading you choose to say things that are incorrect in hopes of convincing others who don’t read that your baseless allegations are true”
    “I suspect you know that and are just trying to grandstand.”

    Please stop attacking me with speculations.

  149. FO-

    I will stop attacking you with speculations when you stop putting words in my mouth. When you put words in my mouth that are distinctly different from what I am saying it seems like a typical ploy by those who have an agenda.

    Here is Claim 1 to US Patent No. 4,710,876, which according to Wikipedia seems to be the patent you are referring to. This is available through Google at http://www.google.com/patents?vid=4710876.

    1. A system for displaying three dimensional surface structures comprising:

    means for storing three dimensional signal patterns representing the value of at least one physical property associated with a three dimensional body at regularly spaced grid locations within said body;
    means for retrieving the eight three dimensional signal pattern values associated with each set of cubically adjacent grid locations within said body;
    means for comparing each set of said eight values with a predetermined threshold value to generate an eight bit binary vector each of whose elements is zero or one, based on the result of said comparison;
    means for generating a set of coordinate values for each distinct binary vector, said coordinate values representing the vertices of at least one predetermined polygonal surface which approximates the intersection of surfaces determined by said threshold value with the volume defined by said eight grid points, said coordinate values also being dependent on the location of said eight grid locations within said body;
    display processor means for receiving said coordinate values and for converting said coordinate values to a display format; and
    means for displaying surfaces determined by said threshold, said display means being driven by said display processor.

    Why shouldn’t this be patented? I would love to hear your reasoning. I would also like to know why you think this covers an algorithm? Clearly to implement the process disclosed here a single algorithm would be insufficient.

    The trouble with trying to have a debate is we are not using terms to mean the same thing. Algorithms are not patentable. Software programs can be patented. Software programs require many algorithms. There are storing, receiving, comparing, generating steps, each of which would require algorithms, and likely many sequential and cooperative algorithms. There are also displaying means as well. Displaying means are certainly not an algorithm.

    Another big problem with trying to have a substantive debate is that many, if not most, of the anti-software patent advocates simply read the title of the patent and nothing more. They then assume they understand everything. This patent has 25 pages of drawings and 10 pages of single spaced disclosure. Reading the title, reading the abstract and then assuming that the patent covers an algorithm and not an innovation is to take a horribly disingenuous short-cut.

    I am not saying you are doing this, but many do. I can’t tell you whether this patent should have been issued without doing a ton of research and knowing the prior art as it existed at the time. So many software programmers make enormously sweeping assertions based on little or no concrete information, but when many of these patents are investigated they are found to have been properly granted. That is because they don’t cover what you think they do, they are highly specific and not general grants of over broad rights.

    I have debated anti-software patent advocates for a very long time here and over and over again they say they shouldn’t have to do a patent search or try and figure out what they are doing is patent infringement. Why? Every other business does. Software is not and should not be unique. On top of that, most don’t understand that in order to infringe each and every element of what is claimed must be appropriated. Taking information that is disclosed in a patent does not mean you are infringing. So most software developers are tying their own hands without reason or support in the law. That is not a problem with the law, it is a lack of understanding and a choice not to become informed. We shouldn’t be making decisions that affect patentability and affect the economy based on the desires of those who don’t inform themselves and believe things that are untrue to be fact.

    -Gene

    What is patented when “software” is patented is the process. That, among other reasons, is why software is not the same as math. Software is a series of method steps that provide a functionality and accomplish a goal.

  150. “was it really just common sense ”

    Now there’s a gallon of gasoline looking for a match.

  151. Gene,

    Marching Cubes isn’t an algorithm? Then what is?

    http://en.wikipedia.org/wiki/Algorithm
    Direct quote from http://en.wikipedia.org/wiki/Marching_cubes , “Marching cubes is a computer graphics algorithm, published in the 1987 SIGGRAPH proceedings by Lorensen and Cline”

    ~Bob

  152. Bob-

    Do you believe everything you read? You do realize the Wikipedia is not always correct, and anyone can edit it and contribute and push their own views and agenda.

    Would you like me to edit that Wiki entry and fix it so that it is correct and explain that it is NOT an algorithm? Would that then clear it up for you?

    Why don’t you tell me what it is. Did you read the patent yourself, or are you just looking at the title and then finding someone who reaches what is obviously an incorrect conclusion and pretending it is authoritative.

    Did you read the Wiki entry on Algorithm, or did you stop once it seemed to support you? You should really read it. It says, in part:

    “While there is no generally accepted formal definition of “algorithm”, an informal definition could be “a process that performs some sequence of operations.” For some people, a program is only an algorithm if it stops eventually. For others, a program is only an algorithm if it stops before a given number of calculation steps.

    A prototypical example of an algorithm is Euclid’s algorithm to determine the maximum common divisor of two integers.”

    So how are you using the term “algorithm”? Why don’t you define so we are on the same page.

    Do you believe that Euclid’s algorithm is the same level of detail and complexity of a software program that has millions of lines of code and hundreds or thousands of sequential and/or simultaneous calculations, comparisons and provide for useful functionality?

    -Gene

  153. Gene,

    The “Wikipedia is innacurate because anyone can edit it” is a very old arguement that’s been debunked a number of times.

    Here’s the Algorthm page on Encyclopedia Britannica: http://www.britannica.com/EBchecked/topic/15174/algorithm . Pretty much the same description.

    ~Bob

  154. Bob-

    Believe what you want, but anyone can edit articles and they are full of inaccuracies and slants that demonstrate a clear agenda. I will just point out that just because you say so doesn’t make it true, you provide no support (likely because there is none, as anyone who has worked on an article knows) and you basically say “trust me you are wrong, although I am not going to explain why other than to give a naked conclusion.”

    I notice you chose not to address my questions. Specifically, you did not define “algorithm” even though the authoritative citation you provided to a Wiki article explains there is no universally accepted definition. You also chose not to address whether a trivial algorithm to determine the maximum common divisor of two integers is of the same level and complexity as a computer program having millions of lines of code. Obviously, this is because it is not and you would have to admit you are comparing apples to oranges, or perhaps more accurately you are comparing a spec of dust to a mountain.

    I didn’t figure you would address what I asked you would have to come to the conclusion that I am correct.

    I have spent enough time answering your questions, and you have spent enough time dodging questions from me. Best of luck to you. Your debating tactics admit defeat.

    -Gene

  155. Software being equated to maths ignores the Gestalt nature of things. Is a pile of ingredients a cake?

  156. Gene,

    All this back and forth argumentation about the definition of “algorithm” is a waste of time because few if any patent practitioners file a patent claim that starts with:

    WHAT IS CLAIMED IS:

    1. An algorithm comprising the following sequence of abstract mathematical steps:
    (a) solving a^2 + b^2 = c^2;
    (b) solving E=m*c^2;
    (c) solving the Arrhenius equation;
    (d) proving Fermat’s last theorem; and …

  157. tamas,

    Is Magritte’s painting, “This is not a pipe” (noted upstairs at comment #143) merely a large binary number or is there much more to it?

    p.s. the digital copy of the painting is not the painting.

  158. Marching cubes _is_ an algorithm. Describing it in patent language requires separating the “system”, the “storage”, the “steps”, but the truth is that the storage could be simply a sheet of paper, and the system could be a person performing the steps. As Britannica says, an algorithm is a “systematic procedure that produces—in a finite number of steps—the answer to a question or the solution of a problem”, and marching cubes gives the answer to the question “how can a 3D isosurface be approximated by triangles” in a finite number of steps.

    Similarly, take the LZW patent. Compressing a file by the LZW algorithm (see http://marknelson.us/1989/10/01/lzw-data-compression/ by Mark Nelson, a renowned authority on data compression) is quite simple, so that the system could be reproduced by a person with a sheet of paper. A demonstration of this can be found at http://en.wikipedia.org/wiki/Lempel-Ziv-Welch#Example — does this mean that the article editor has violated the (now expired) US Patent 4,558,302?

    The difference between a machine and software, is that software execution can be simulated entirely by a person. Speed does not count: for example Intel has tools to run physical microprocessors (not simulations) billions of times slower than normal to ease their understanding of problems with the processors. A machine instead (including hardware such as a transistor) must have a physical embodiment to make sense. I’m all fine with patenting the software process to drive a machine along with the machine itself, because you could say that physical embodiment requires the software in order to be usable. However, this is _not_ the case for marching cubes or other software patents such as LZW.

  159. I’ll take the spoon provided by Gene at comment 54

    “Specifically, you did not define “algorithm” even though the authoritative citation you provided to a Wiki article explains there is no universally accepted definition.”

    and stir the pot:

    Algorithm’s ARE patentable.

    Let me also blatently steal, er, um copy (is this a copyright violation?) from Noise Above Law at Patently-O:

    “Why doesn’t 6 turn to his favoratie source (wikipedia) to define algorithm?
    Here, I’ll help: http://en.wikipedia.org/wiki/Algorithm
    “In mathematics, computing, and related subjects, an algorithm is an effective METHOD for solving a problem using a finite sequence of instructions. Algorithms are used for calculation, data processing, and many other fields.
    Each algorithm is a list of well-defined instructions for completing a task. Starting from an initial state, the instructions describe a computation that proceeds through a well-defined series of successive states, eventually terminating in a final ending state.”
    Oh, wait a second, an algorithym is a method that transforms something from state to state.
    Last I checked, method claims that transform something (an article) from one state to another clearly satisfy even the MOT test.”

    and then later:

    “An effective method (also called an effective procedure) for a class of problems is a method for which each step in the method may be described as a mechanical operation…”

    So we see that both Gene and Bob are wrong, but for different reasons and to different levels (of abstraction). Clearly there are levels of abstraction of wherein algorithms are definitely patentable.

  160. Paolo-

    You say: “Speed does not count…”

    Of course it does. When something can be done faster, easier and better you have a patentable invention if it is new and non-obvious. The fact that you don’t like that doesn’t make it untrue. Following the logic of your argument then automobiles and airplanes should not be patented because if you have months you could walk from point A to point B across the country. That is ridiculous, and thankfully your twisted view of the world is not the law.

    -Gene

  161. @Paolo (comment #158 above) definition : “an algorithm is a “systematic procedure that produces—in a finite number of steps—the answer to a question or the solution of a problem” …”

    Paolo,

    We forgive you because you know not of what you talk or whom you talk to.

    Let me set you straight.

    We are the guys who got the A+ in your advanced college physics class (if you got that far). We are the guys who finished our degrees in chemistry, physics, engineering (or some other hard hard science) with honors and distinction and then went on to get yet a whole other degree in law school. And by the way, the law degree, passing the bar exam, getting a job in a law firm, etc. are no cake walks.

    At least in my personal case, I have incredibly bright computer practitioners coming to my office on a routine basis to disclose their latest improvement in data compression or other signal processing technologies. LZW is ancient history and quite frankly I don’t need another basic tutorial on history-based compression techniques.

    I appreciate that you didn’t go to law school and perhaps you imagine that all day long we lawyers sit around dressed up in our wizard costumes, hugging our alchemy books and speaking Latin gibberish in some smoke filled back room, all while waving our inked quills and not having a clue about how to write computer code or put two transistors together.

    Sorry to disabuse you of your fantasy, but we’re regular people and many of us have earned livings (or still do) writing code, designing computer circuits, analyzing new computer architectures and so on and so forth.

    There is nothing in the law that says an “algorithm” is not patentable.

    Let’s look at the definition you posted above (if you’re still with us and have read this far down): “a systematic procedure that produces—in a finite number of steps—the answer to a question or the solution of a problem”.

    OK. Here’s my “problem”: I want to synthesize chemical compound C using starting reactants A and B.

    The solution “algorithm” might be to mix A and B in the presence of catalyst K and at temperature T for time duration D. That’s a systematic procedure with finite steps.

    There isn’t a sane person around who will not say that such an “algorithm” is not patentable if it is also at the same time novel, nonobvious and useful.

    (Don’t forget you’re messing with the guys who went to law school here and one of our home work assignments was to learn how to read definitions, analyze them and tear then apart.)

    Similarly, there is nothing in the law that says a procedure that can be carried out only with aid of the human body and a piece of paper (and a pencil?) is not patentable.

    Hint: think of building a new kind of paper airplane.

    p.s. Don’t grant me the use of a pencil because one of your fellow anti-patentists in an earlier thread really regretted it when he let McGuivere have a pencil as well as paper. Too much ammunition.

    Enough said for now.
    Think it over and …
    Have a good weekend. ;-)

  162. step,

    Do you and Noise Above Law conspire together? You sound just like him – only more eloquent.

  163. “Unfortunately, the Federal Circuit didn’t understand that and issued the CAFC decision in Bilski that calls into question the patentability of software, as well as the patentability of medical processes, diagnostic processes and therapeutic treatments. So in order to kill pure business methods the Federal Circuit shot at and killed much more. In truth, what the Federal Circuit did was akin to pulling out an elephant gun to shot a fly.”

    –> I found the CAFC judgement more articulated and reasonable than your interpretation.

    > “I am begging, praying, pleading.”

    –> Feel free to organise a patenting tea party… After all the business interests of patent attorneys are at stake.

  164. Oldtimer,

    Sorry for the delay to your comment at 77 way above – I have been having too much fun wading through the herd’s inane responses.

    The exchange was on a different thread and regarding “article” not necessarily beign a physical thing. See http://www.ipwatchdog.com/2009/12/22/cafc-puts-coal-in-microsoft%e2%80%99s-stocking-by-affirming-240-million-damage-award-and-permanent-injunction/id=8014/#comments

  165. A. Rebentisch-

    You finally showed your true colors. You are a liberal hater! Thanks so much for removing all doubt with your condescending “tea party” reference. Oh… I long for the days when it was the highest form of patriotism to dissent. Those were the good old days… back when democrats and liberals were being patriotic. Now the highest form of patriotism is to just shut up and have no opinion.

    At least now we all know who you are and what we are dealing with.

    -Gene

  166. Gene,

    when I say: “Speed does not count…” I mean “what counts is whether the inner working is exactly the same”. An automobile obviously does not convert chemical to kinetic energy in the same way as a walking person and, likewise, a computer obviously does not produce its output in the same way as a human brain. So, an automobile and a computer are patentable. Still, “speed does not count” because a hypothetical computer that works more slowly than the human brain would still be patentable, wouldn’t it?

    Similarly, of course, different algorithms use different steps. For example, there are algorithms to “find the way from A to B”. This can be applied to a computer which is given A and B and maps in a suitable format, or to a person. Suppose now you want to “continuously update the fastest way from A to B given a GPS reader’s output”. This is clearly another instance of the _same_ problem, since what the algorithm really entails is “find the way from A to B”, except that A is continuously changing (it is a GPS reader’s output): as soon as you start your journey, the information on where you started from can be discarded.

    Of course, the two problems will probably be solved by different algorithms: in the second case, you want to reuse as much information as possible between the various recomputations. In this sense, “speed does count”! However, the second algorithm will *still* be usable by either a computer or (more slowly) by a person, and in this sense again “speed does not count”.

    “step back”s answer was more interesting, and the questions he posed about airplanes or chemical compounds are indeed interesting. However, his answer was in general so paternalistic and irritating that I won’t bother.

  167. “However, his answer was in general so paternalistic and irritating that I won’t bother.”

    Sucks to be wrong.

    …and the blind shall stay blind.

  168. Paolo,

    Please lie down on the couch and tell us what you find so irritating about your father.

    (If you wish, we can have a slow running, fully deterministic computer humming near your head to make you feel more at home.)

    (p.s. Don’t feel bad. Many an anti-patentists have run off with their tails tucked between their legs at this point.. You are not the first and you won’t be the last.)

  169. I’m more and more convinced that all the people posting under pseudonyms are sockpuppets of the same person, though I won’t go as far as saying that they are sockpuppets of Gene Quinn.

    Adieu.

  170. I’m glad you are convinced of something. It shows that you actually have a mind, rather than a fully automated dogma spitback mechanism.

    Now that my ad hominym is out of the way, rather than simply bluster about things that you don’t control, put some thought into Step’s question and give an answer. It is too bad that the tripe you parrot does not have an answer you can “copy”. Did I say I was done with the ad hominym? I must have been mistaken. Well, there’s a first for everything.

  171. Ian,

    Unlike others around here, I’m too old to get into an online shouting match, but I will make a few comments on your comments/questions in post number 90. Your comments are all good and insightful, by the way.

    I read through the letter that Knuth purportedly posted on this blog. I don’t discount him because he is a brilliant academic, but he’s simply wrong. I don’t have enough time left on Earth to respond to all his arguments, but he was wrong about the state of software patents before 1980 versus after 1980. There was no abrupt change in policy. Rather, patent law simply evolved to reflect the changes in processor and memory capability I wrote about in post number 34. He’s also wrong about the impact of software patents on fundamental building blocks like compression and encryption. These entities exist to innovate, patent, and license. You want to use RSA encryption in your software/hardware system? No problem–just take a license.

    I’m an empirical kind of guy and I suspect you are too. The validity of a theory is tested by real world observation. If Knuth and the software patents doomsday folks are right, then the massive explosion in software patents in the 1980s, 1990s, and 2000s should have caused a massive implosion in software innovation. Now check that against theory against economic reality. In the real world we witnessed a massive explosion in software innovation during this time period. And more disturbing to Knuth, et al. is that the explosion in software innovation was strongest in the U.S., which offered the strongest patent protection for software, and regressed geographically in almost perfect correlation with the strength of IP protection for software. Observe the landscape of major software companies that developed in the U.S. during this time frame: MSFT, Oracle, Google, Yahoo, Netscape, Symantec, Computer Associates, McAfee, Red Hat, yada, yada, yada. Now compile a list of similar companies in Europe, where software patents were much more limited: SAP, others??? Japan: none? China: none? India: none? How can this be?? When empirical observations from the real world don’t match the predictions of your theory, maybe you should reevaluate the theory. (This is, by the way, unsurprising to a patent attorney as we understand the role patents play in gathering capital and positioning in markets.)

    As to Bill Gates, the measure of the patent system is not how well it works for MS. MS needs patents like a fish needs a bicycle. The real utility of software patents is to provide smaller software companies some degree of negotiating leverage with MS so that MS doesn’t put them out of business by simply bundling their functionality into the Windows operating system, thereby rendering them another victim in the Microsoft graveyard. (As an aside, I can see your current venture suffering an analogous fate in the Internet space.)

    I know I won’t change your view today, but I’d like to make a bet with you. If you and Knuth are right and software patents are bad, then a decline in software patents should trigger a boom in software innovation and wealth creation. Let’s see how Bilsky comes down. If it is bad news for software patents, and I suspect it will be, then I’ll bet you dinner at your favorite Tex-Mex restaurant in Austin that a massive explosion in software innovation will not follow in the wake of Bilsky.

  172. “day Trader” asks at another site:
    CAN I GET A PATENT FOR COMPUTER SOFTWARE?

    link= http://dengruo.info/201001/can-i-get-a-patent-for-computer-software/comment-page-1/#comment-83032

    One respondent answers:
    1) You cannot patent an idea.
    2) You do not patent software, you copyright it.

    One can easily how disinformation rapidly spreads through the internet.

    On the other hand one wonders why a person would ask a bunch of random readers rather than doing research via google and elsewhere?

    I tried asking google the same question:
    CAN I GET A PATENT FOR COMPUTER SOFTWARE?

    The number one answer was this wiki site:
    http://en.wikipedia.org/wiki/Software_patent

    The wiki entry explains: “There is intense debate over the extent to which software patents should be granted, if at all.”

    It also explains: “Software patent does not have a universally accepted definition.”

    There is even an “intense debate” web site at wiki:
    http://en.wikipedia.org/wiki/Software_patent_debate
    It mentions Bilski

    interesting

  173. Great, just great.

    Now OldTimer is making perfect sense and advancing a gentile argument that may be listened to.
    Are you purposely trying to sabatoge my Kool-aid sales?

    Ian don’t listen – it’s a trick. Remember, how do you tell a lawyer is lying? – his lips are moving. It’s time to stick your fingers in your ears and repeat very loudly – LA LA LA LA LA LA. That, and time to buy another glass of Kool-aid.

  174. Mr Quinn,

    You wrote to me:
    > You say that there is evidence to rebut my claim that those against software patents are not innovators,
    > yet you simply reach that conclusion without support, evidence or argumentation.
    > Naked conclusions that are unsupported by reality are not helpful.

    Perhaps I was unclear. I was responding to your claim “If you are against software patents you are not an innovator”.

    This implies two mutually exclusive sets, “against software patents” and “innovators”. I was thinking that that the existence of an entity that was a member of both sets would disprove the claim. I offered Dr. Knuth (and Linus Torvalds and Richard Stallman) as people who I think are innovators and also against patents. Are you arguing that all three are for patents, or that all three are not innovators? Or are you suggesting that these are not forms of ‘support, evidence or argumentation’?

  175. Since the apparently accepted (by the blog author and commenters here) definitions of ‘software’ and ‘algorithm’ are so close (I don’t see a functional difference based on the discussions here) it’s more plausible to me that algorithms are patentable than that they are not. It seems to me that it matters greatly where you draw the lines between
    ‘a) mathematical object’,
    b) ‘equations’ (which I take to be a subset of a)),
    c) algorithms (which are variously claimed as a)’ or ‘not a)’ and
    d) ‘software’

    I pulled out my copy of Cormen/Lieserson/Rivest 2nd ed., and its definition of algorithm looks much like Mr. Quinn’s definition of software. I can repeat them and draw the parallels if anyone wishes.

    Is there a mathematician or lawyer here who’d care to write with rigor about the definitions of these things, or at least point me to where this has been defined? I’d consider Mr. Quinn’s article on ‘software is not math’ to be more of a personal reflection than as a rigorous statement, for example. Dijkstra had much more nuanced things to say regarding the boundaries between math, computation and software, and I’d argue that the chosen quotes were not a complete picture of the Dr.’s views. I’m obviously a fan of Dr. Knuth, so I’m prone to lumping software, algorithms and equations in to the ‘mathematical objects’ bin, and I haven’t really seen an argument that truly contradicts that, leaving aside the question of what is patentable, but also forming a basis for discussion.

  176. > If Knuth and the software patents doomsday folks are right, then the massive explosion in software patents
    > in the 1980s, 1990s, and 2000s should have caused a massive implosion in software innovation.

    Is this an empirical measure? Against what is it measurable? There were hundreds of other factors involved in the rise of software sine 1980… Moore’s law and the burgeoning tide of transistors, Metcalfe’s law and the burgeoning tide of network nodes, etc… is it plausible to argue that the presence/absence of software patents is the driving force in innovation? How do you know, for example, that patents didn’t act as a brake on the innovation that occurred? Pointing at the examples of other countries doesn’t exactly correct for the other factors that may be at play. It seems to me that ‘value to someone’ (whether paid/patented or otherwise accounted for) drives innovation more so than ‘accounting for value to someone’ (which is how I think of patents). For example, RSA has a great deal of value, but so does HTTP, arguably more than RSA depending on how you count. I’d argue, whether you counted ‘lines of code’ or ‘dollars of revenue’, HTTP has greater value than RSA, and it may be that RSA has much of its value due to having lots of network nodes to transmit across… due to HTTP.

  177. To be slightly less opaque, HTTP= Hypertext Transfer Protocol, co-invented with HTML (with roots in SGML) by Tim Berners-Lee, another existence proof offering of ‘innovator against software patents’

  178. “The truth is that whatever the Supreme Court rules software will remain patentable, we just won’t be able to call it software.”

    Wait… Are you really arguing that your job as an attorney is to contort the facts to get your client something which the Supreme Court has clearly said they cannot have? For the rest of us, when the Supreme Court rules one way or another, we abide by the spirit of its ruling in order to respect the highest judicial authority in the United States. Don’t you have any respect for judicial institutions?

  179. PrometheeFu-

    Can you please stop being so ridiculous? Can we at least try and keep it real and based on facts?

    Your statement demonstrates that you know absolutely nothing about the law, and probably even less about the Supreme Court. Can you give me a single example of when the US Supreme Court has ever said anything clearly? The law evolves, and no single case will ever decide all the issues. If you were familiar with law and/or the Supreme Court you would know that. There will always be issues to be resolved by the lower courts, and an evolution proceeds.

    There is ABSOLUTELY nothing the Supreme Court can or will say to put an end to software patents. Even if they say “software is not patentable” the very next day the USPTO will issue software patents and patent attorneys and clients will get software patents. We just won’t call it software, but the rights will cover the same thing. That is the whole point. Without abolishing the entire patent system no ruling of the Supreme Court will prevent the patenting of what we all and the rest of the world calls software.

    Your comment about abiding “by the spirit” of any Supreme Court ruling is almost laughable. Again, you demonstrate zero knowledge. There is no such thing as “the spirit” of the law. If you are not prohibited from doing something you are permitted. So if they want to kill software patents, as the Federal Circuit obviously did, they need to do is so that they die and there is no ability to obtain protection. Congress and the Courts have showed over and over again that they lack any ability to actually articulate rules that do that, so we just follow the law. Since when is following the law announced disrespectful?

    If you want to follow the “spirit” of a Supreme Court rule then go right ahead. The rest of us will follow the law and get for our clients the rights that they are legally entitled to. But be my guest and go ahead and hamper yourself with imagined restraints. It will make it all the easier for my clients to prevail in business.

    Cheers!

    -Gene

  180. [...] but reader Brad points us to an absolutely stunning argument that Quinn has now made, saying that true innovators want patents, and only those who don’t innovate don’t like patents: If you are against software [...]

  181. The anti-patent crows are gathered up around the Tech Dirty hole:

    http://www.techdirt.com/articles/20100107/0515207655.shtml

    Comment 44 over there is probably representative. The commentator asserts that his side (the ant-patentists) have “evidence” , whereas the pro-patentists have nothing but “hand-waving”.

    Commentator #44 points to the Wright brothers’ patent war with the Curtis company as the evidence:
    http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war#Patent_war

    But is it evidence?

    If the Wright Brothers did not have their patents , they would have had nothing and Curtis or any other well financed competitor could have stepped right past them as if they didn’t exist.

    Clearly a bunch of bicycle mechanics did not have much in the way of money when they started, which may be why they tried to write their first patent application by themselves (pro se) and which may be why their first patent application failed.

    If the Wright Brothers did no have patents, the history books may have said the following about them : “……”.

    That’s right. Nothing. Kind of the same way the history books remember Gary Kildall and Tim Patterson:

    http://inventors.about.com/library/weekly/aa033099.htm

  182. Step-

    Yes, I saw the anti-patent folks over at Tech Dirt getting whipped into a lather. I also notice that they had to mischaracterize many of my arguments and statements, which is of course nothing more than admitting defeat and acknowledging that they must misconstrue in order to have any hope.

    I always find it amusing they say pro-patent folks, and me in particular, do nothing more than hand waving. I guess what they really mean is after they completely ignore, or perhaps don’t understand, the evidence they are left with nothing they find convincing. Of course, overlooking evidence and saying it doesn’t exist is intellectually dishonest.

    I am also always amused regarding what they pick up on and quote me with respect to. They have a knack for picking the things I say that are blatantly obvious and correct and acting like it is erroneous. That makes me realize they do understand and choose to remain ignorant. I am particularly fascinated that they always quote my saying I don’t care about studies. Interestingly, they never quote the rest of what I said. Studies are a dime a dozen and universally done by someone with an interest in what is being studied, everyone knows that who is being honest with themselves. What they choose to ignore is that I prefer to look at history and current economic realities. As much as they like to distort they can never distort history and the economic reality that those countries with no patent system have no economy and those with weak patent systems have little economic activity. I guess if they acknowledged what I really say they would have to admit I am right, a thought that no doubt causes them to go into an apoplectic fit.

    Cheers!

    -Gene

  183. [...] Those who are anti-patent and against any form of intellectual property rights are sure to be enormously upset by this study, which quite clearly shows the virtues of intellectual property and patents in particular.  On the pages of IPWatchdog.com I have from time to time engaged in debates with the anti-patent crowd, and in one particular instance went back and forth with a gentleman by the name of Ian Clarke who professed to be an innovator who doesn’t like patents, particular software patents.  He claimed to see no reason for software patents and stated they should not exist.  He even went on to say that he is a prolific inventor and entrepreneur who has raised over $15 million in venture capital without patents, relying only on copyright protection and trade secret protection for his software related innovations.  See comments at Praying the Supremes Get Bilski Right in 2010. [...]

  184. It’s actually “lucky rabbit’s head”.

  185. “Those against software patents are not innovators, period.”

    Okaaaaay. The real world disagrees, but don’t let that trouble you.

    TRiG.

  186. Timothy-

    The world doesn’t disagree with me, but why would you let that truth bother you? The innovation and patent communities agree with me. Those that disagree are the non-innovators who want to copy the work of others. So it is no great surprise that copyists would think they are taking the high ground.

    -Gene

  187. Ah, that’s right. We weren’t counting on the fact that you incorrectly believe truth is democratic, and “people agreeing with me” means for you that you’re right.

  188. “The innovation and patent communities agree with me.” Some innovators, probably many innovators, perhaps even the majority of innovators, will agree with you when you say that patents are a good idea. There are, though, a large enough group of innovators who do not agree with this statement.

    Therefore, the statement that “Those against software patents are not innovators, period” is clearly, on it’s face, wrong. (And “the innovation” community most likely know that many of its number disapprove of patents, and would not agree with your statement that these people don’t exist.)

    Would you like a Venn diagram? In the your world, the circle for “innovators” is entirely contained within the circle for “approves of patents”. In the real world, these two circles certainly have a large intersection, but neither subsumes the other.

    The presence of even one innovator who disapproves of patents is enough to disprove your ludicrous claim. And there’s more than one, even in these comments.

    TRiG.

  189. To make things clear, let’s talk about four claims you made:

    1. Patents are good for innovation.

    Arguable. Probably depends on the field and on what sort of patents are granted.

    2. “The innovation community” (most innovators) approve of patents

    Probably.

    3. Every single innovator approves of patents. There is not one single innovator anywhere who disapproves of patents.

    Ludicrous.

    4. (In post 186) The entire innovation community and the entire patent community agrees with claim three.

    Even more ludicrous.

    TRiG.

  190. Hopefully this is germane to the latest discussion here…

    OReilly Radar today pointed to a Berkley study addressing the use of patents by surveyed entrepreneurs.

    Blog post: http://radar.oreilly.com/2010/07/why-software-startups-decide-t.html
    Study: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049

    Quote from the post: “Two-thirds of the approximately 700 software entrepreneurs who participated in the 2008 Berkeley Patent Survey report that they neither have nor are seeking patents for innovations embodied in their products and services. These entrepreneurs rate patents as the least important mechanism among seven options for attaining competitive advantage in the marketplace. Even software startups that hold patents regard them as providing only a slight incentive to invest in innovation.”

    I’d argue this represents part of the ‘innovation community’, and it appears to be at odds with Mr. Quinn’s claim.

  191. pmorrison-

    I wonder what you think I wrote is inconsistent with the quote you provide. Can you elaborate please?

    Perhaps you don’t understand what I wrote or what the quote actually says. The quote centers around competitive advantage primarily, and it is true that most in the software industry do not see patents as playing a role in competitive advantage. Patents for software companies play 2 primary purposes. First, they act as a shield and make it more unlikely that a patent infringement lawsuit will be brought because if one is brought there will be a counter suite because most companies are infringing or at least arguably infringing the rights of others.

    Second, investors prefer to see patents. While you cite a 2008 study here the most recent 2010 study conducted by the Patent Office shows that 76% of inventors view patents are essential. That is consistent with the real world experiences of many inventors and entrepreneurs. Anyone who has ever tried to raise money for a start-up knows patents are critical.

    You might point to the last statement as contrary evidence, but you need to read that carefully. It says that the start-ups themselves say that patents provide only a slight incentive to invest in innovation. That is extremely different than saying that investors view patents as only slightly important. Investors quite clearly do view patents are critically important. But hey, if you want to be a target for a patent infringement lawsuit and have nothing to scare away such a lawsuit or respond to allegations, and if you are willing to explain to investors who want to see patents that they are being foolish then go right ahead.

    The reality is what it is and those who choose to ignore it will continue to be at the bottom of the industry. There are simply no major companies without a patent portfolio, regardless of whether they are pursuing a proprietary or open source model. So swim against the stream all you want, I just see no reason to make business more difficult than it already is.

    -Gene

  192. Gene writes:
    > I wonder what you think I wrote is inconsistent with the quote you provide. Can you elaborate please?
    I was thinking of
    > “If you are against software patents you are not an innovator. Innovators want patents, those who do not
    > innovate and copy others do not want patents.”

    It may be that I do not understand this:

    > “Two-thirds of the approximately 700 software entrepreneurs who participated in the 2008 Berkeley Patent
    > Survey report that they neither have nor are seeking patents for innovations embodied in their products and
    > services”

    but it appears to me that there are innovators who “neither have nor are seeking patents”, which I was thinking of as contrary to “Innovators want patents”.

    It seems to me that you conflate innovator with investor. Their interests can certainly overlap, but your claim that their interests are one and the same is extreme, and isn’t supported by the evidence.

  193. pmorrisionfl-

    I see where your trouble is. You are having difficulty understanding that those who copy the work of others are not innovators. For the life of me I don’t understand why that is so difficult.

    You see, just because someone says they are an innovator doesn’t mean they are. So the survey says that software entrepreneurs choose not to seek patents for their innovations, which is simply not my experience, nor the collective experience of those in the industry. The reason people don’t seek seek patents is because they have NOT innovated and have simply copied, or perhaps they have created without any inquiry into whether they are infringing so they don’t want to find out. Hardly innovation. Innovation requires knowing what others are doing and doing something differently and which is an advance. By not looking and copying wherever possible that is simply not innovation.

    Pretty easy concept.

    -Gene

  194. Gene,

    I think there were numerous discussions elsewhere (not on your blog) where the distinction between “innovation” and “invention” were hotly debated.

    I personally have no idea what the correct definition for “innovation” is. It seems to me to be a very nebulous word which the anti-patent crowd is taking advantage of in order to muddy the waters.

    Even the word “invention” is a foggy one. My view is that “invention” includes both patent-eligible (under 101) inventions and not patent-eligible (under 101) inventions as well as not patent-eligible (under 102, 103) inventions.

    For example, if I “invent” a story for my teacher to explain why I don’t have my homework (“Well you see Mr. B. Dogma, I was walking my dog and I had the completed homework in my backpack and you wouldn’t believe this, but what happened next is ….”) that is an “invention”. Just not a patent-eligible invention.

    I don’t know whether the telling of such a tall tale to my grade school teacher would qualify as “innovation”. But then again, who really knows what the definition of “innovation” is is? (I think I’ll ask Mr. Clinton. He seems to be very “innovative” with his use of language. I wonder who he was pointing to when he said “that woman”? ;-) )

  195. Go,. Gene! ” ‘Innovator’ is defined how I want it to be defined to prove my beliefs right, goddamnit! “. Real easy concept.

  196. Rudd-O,

    I came not to bury Quinn, but rather to praise him and to point out that too many in the anti-patent crowd use misleading and vague language.

    Gene’s basic point is still correct:
    1. Those who can, invent (in the 101 sense).
    2. Those who can’t, pilfer and mock the patent system (with use of mind manipulating twists of language).

  197. Rudd-0-

    You are quite clueless, aren’t you? Proving you are intellectually dishonest and don’t know what you are talking about is so easy it almost isn’t fun.

    Definition of “innovator”:

    “To begin or introduce (something new) for or as if for the first time.” See http://www.thefreedictionary.com/innovator

    “An innovator or pioneer in a general sense is a person or an organisation who is one of the first to do something and often opens up a new area for others and achieves an innovation.” See http://en.wikipedia.org/wiki/Innovator

    Definition of “innovate”:

    ” to introduce as or as if new” See http://mw4.merriam-webster.com/dictionary/innovator

    “to introduce something new; make changes in anything established.” See http://dictionary.reference.com/browse/innovate

    So you can protest all you want, but I am right and you are wrong. Innovation requires something new, and those that copy are not innovators.

    -Gene

  198. Step-

    I understand your point, but it seems to me that all definitions of “invention” or “innovation” or “innovate” or “innovator” require the presence of something unique. No one, except those in the software industry who copy the work of others, would ever define any of those terms in any way that would eliminate the new and/or unique aspects of creation. So what we have here is a bunch of folks in the software industry who want to fancy themselves as innovators when in fact they don’t even try and do anything different, have reckless disregard for whether they are infringing and gladly copy whatever they can to make their lives easier. That is lazy and does not comport with any fair definition, literal or common, of any of those terms.

    I repeat what I have said many times and know it to be true. You simply cannot claim to be an innovator when you copy the work of others. At a minimum there needs to be some unique aspects of addition. Otherwise you are at best a re-arranger, not an innovator.

    -Gene

  199. Well, if you want to turn the question around and phrase it as
    > “You are having difficulty understanding that those who copy the work of others are not innovators.”

    and you’ll not accept a survey, how about a specific instance?

    What’s your view of Tim Berners-Lee, the person behind HTTP and HTML, the core protocols of the world wide web (and without which this conversation could not take place)?

    Two points, supported by quotes from his page at Wikipedia: 1) He didn’t patent what he made 2) He built on the work of others.

    1) Berners-Lee made his idea available freely, with no patent and no royalties due.

    2) In 1989, CERN was the largest Internet node in Europe, and Berners-Lee saw an opportunity to join hypertext with the Internet: “I just had to take the hypertext idea and connect it to the Transmission Control Protocol and domain name system ideas and — ta-da! — the World Wide Web.”[12]

    By your argument, he is not an innovator and not an inventor. Do I understand you correctly on this concept?

  200. ” to introduce as or as if new”

    Gene,

    With due respect, your own definitions undercut your position.

    The conjunctive phrase “or as if new” implies that someone who does not “create” but rather merely brings to the attention of a group something that is new to them, is an “innovator”.

    Anytime you use the word “new” it begs the question, new as to whom?

    Even when one files a patent application, what is inside the patent application is not new as to the inventor and the patent attorney/agent who prepared the application.

    And as for the claimed invention, it may further not be “new” as to those who were earlier in possession of the same but chose to conceal, suppress or keep as a trade secret that invention.

    So remember, pretty much with everything you have to ask new as to whom and also whether the “innovator” is necessarily the “creator” or merely someone else who introduces something as if it were new.

  201. I look forward to your considered response to my question, though I do not demand such a response. Silence is its own kind of response.

    Thank you for allowing me as a guest on your blog. I have found it instructive to see how people think about software patents.

  202. pmorrisonfl-

    While you are more than welcome to incorrectly interpret silence as defeat or lack of interest. I am a busy guy, writing, interviewing news makers and responding to ever comment is not always possible.

    But as for what you say…

    “Berners-Lee made his idea available freely, with no patent and no royalties due.”

    That was his right to do.

    “By your argument, he is not an innovator and not an inventor. Do I understand you correctly on this concept?”

    If what he did was obvious, as his comments suggest, then he would not be an inventor and the reason he didn’t get a patent would seem because his contribution was not significant enough. It is hard to say though with just such a small piece of a quote and knowing full well that whatever I say your next comment will be “AHH HAAAA…”

    One of the reasons it is hard to say is because I have not studied whether Berners-Lee’s contribution would have been independently patentable, whether it would have been considered obvious or whether it would have been new. What is clear is that he at best was the icing on the cake with many others who came before him, but that in and of itself would not mean he could not be an inventor. He would have to contribute something new and nonobvious in order to be an inventor and in order to have innovated. See, there is that pesky new concept again. You simply cannot be an inventor or innovator if you merely copy. You also are not considered an inventor if what you did was obvious even if it was not identically known.

    -Gene

  203. Step-

    I think you are reading too much into the definitions. Dictionaries always give alternative ways to define terms. I also don’t see how these definitions undercut my argument.

    1. it is impossible to be an innovator if you merely copy others;
    2. if you make something new (as that term is defined in 35 USC 102) you might be an innovator, or you might be merely a mechanic who has provided no conception;
    3. if what you make is new (see 102) and it is also nonobvious, then the mental conception added would make you an innovator.

    The trouble with the open source types is they want to be considered “innovators” without ever inquiring whether what they did was new or nonobvious. They don’t even look, and in some cases do affirmatively look and then take. The look and take is hardly an innovation, and those who don’t look certainly cannot consider everything they do to be an innovation.

    -Gene

  204. Thank you for clarifying your views.

  205. Gene-

    I respectfully disagree with your comment #203.

    Definitions, and haggling over them, is what lawyers do.

    Shifting the line in the sand just slightly one way as opposed to the other often decides whether your client wins or loses.

    Almost no one (rational that is) bothers to fight if the issue is clearly far from the boundary line one way or the other (guilty or innocent for example). Lawyers are called in when the question is closely to the boundary and what looked like a bright dividing line from far away, on closer inspection becomes a fuzzy and shiftable gray zone.

    As for being an “inventor” of something obvious, 35 USC 103 says it is an “invention”:

    103 (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that …

    Being second to invent or second to invent something that is an obvious variation over the previous does not make you any less of an “inventor”. It just means you don’t get a patent for your act of inventorship.

  206. I’d like to thank all contributors, this long series of comments did a lot to enlighten me concerning software patents.

    I have regarded patents as a way to improve our understanding of programming and the finesse of it’s execution. I saw it as a means to reward someone for sharing their advancements with the rest of the world, as a thank you for moving us forward. I was mistaken.

    Patents might work well in other fields, but not in software. A software program is not one solid, monolithic block. As ground-breaking as one part of it’s functionality may be, any program relies on other mechanisms common to many other programs. Taking into account the very fast pace at which software evolves, independent developers reach similar solutions nearly simultaneously. Despite what’s been suggested, this cannot be labelled as “copying”. The issue though is that patenting minor routines only lies a minefield that stifles the dynamic world of software development, and prevents what really matters, the effective, major breakthroughs.

    The PTO has done a lousy job at sorting between the two, but they can’t really be blamed. That line is only clear in hindsight, or to the few visionaries that can grasp the power of a concept before it takes the world by storm. In this circumstances, patents are a hindrance and not a driving force for creation and development.

    I have no doubt that software patents in the US will come to an end. I just hope it’s sooner rather than latter, before major damage is done to the vibrant software development community in the country.

  207. Jean,

    For someone who comes across as a visual person (“I saw it as a means to reward …”) you surprise by not seeing that there is no clear line of division between “software” and “hardware”.

    A ban on “software” related patents would require a ban on virtually all hardware machine and process patents as well.

    Moreover, none of your quick hacker friends “solves” a problem until the first to invent points out what “the problem” is in the first place.

  208. Example:

    Before GUI computing became popular,

    virtually everyone in the software game saw command-line interface as the only possibility.

  209. > …not seeing that there is no clear line of division between “software” and “hardware”.
    > A ban on “software” related patents would require a ban on virtually all hardware machine and process
    > patents as well.

    Why is it the case that physical realization is not a sufficient dividing line between hardware and software (or process for that matter)? It seemed to suffice for a very long time, only muddied in the last few decades as some people began to argue that software and process deserved patent protection in the same fashion as hardware. (My reading of the history to this point, feel free to illuminate).

    I understand that, for example, anything from a logic gate to a PC, or a city, or a weather storm, can be simulated in software, with varying degrees of faithfulness. My smartphone can pretend it’s an MP3 player, a GPS unit, or a metronome, for example. However, there is craft, effort and material required to produce hardware that goes beyond what software simulation can accomplish. I’m reasonably sure that Toyota’s simulations of their hardware didn’t include the gas pedal sticking.

    Are there lawyers and are there patent lawyers who believe that hardware is distinct from software, or is it uniformly beleived that they are indistinguishable?

  210. or is it uniformly believed [by ALL patent lawyers] that they are indistinguishable?

    I am not an elected spokes person for all patent lawyers.
    And quite frankly I have no idea what the schools are lately teaching CS majors.

    However, there is this thing called “physics”.

    In the real world, all information has to be, and can only be, expressed by transformed matter and/or energy.

    People do not file patents with the intent that they be directed to some fantasy metaphysical world cooked up in the heads of anti-patent people.

    Of course, many a Supreme Court Justice are the same people who flunked Physics 101 in college (or more wisely didn’t even attempt to take it) and instead took Political “Science” courses, where the word “science” is of course used as a pretense for something that Political Science is not.

    So yes, the Supremes can utter gobbledygook words like “abstract” and they can feel magnificently sacrosanct in doing so.

    But as Galileo is rumored to have muttered under his breath during the Inquisition: “It moves nonetheless”.

    In other words, no matter what a thousand “software” theoreticians say as they dance on the head of their collective pin head, in the real world, real software requires storage of transformed matter and energy. It is physical and real nonetheless. No patent lawyer worth his/her salt claims an abstract concept. Instead they claim a physical process or a physical machine, manufacture or composition of matter. (These are the 4 areas of claimable subject matter expressly allowed by 35 USC 101.)

  211. >there is no clear line of division between “software” and “hardware”.

    Only a lawyer can blur that line.

    > none of your quick hacker friends “solves” a problem until the first to invent points out what “the problem” is in the first place.

    Problems come up all the time, and most can be solved by anyone mildly competent in the field. It’s what people do everyday: when they face a problem, they go about solving it.

    Being the first to solve a particular problem because they were the first to stumble upon it says nothing about merit. In such a rapidly evolving field, merit is based on the difficulty of the problem and the ingenuity of the solution. Software patents are presently flawed because they don’t take this into account – they aren’t about rewarding real creativity and innovation.

  212. Only a lawyer can …

    Jean,

    Now you are starting to dig yourself into a deep hole.

    First you don’t know me or my background and you are making bold assumptions.
    I used to program for a living and even today I still dabble in the dark software arts.
    (What? You don’t think I handcode the blockquotes and other emphasis stuff every time, do you?)

    Second, you are resorting to the tired rhetorical tactic of ad hominen attack where you try to bring down the person on the other side rather than the idea. If I have an FPGA that is programmed to decode some input symbols, what is that, hardware or software? (Google FPGA if you don’t know what one is)

    Being the first to solve a particular problem because they were the first to stumble upon it says nothing about merit.

    Nice visual. But I haven’t seen any “problems” sticking out of the ground for me to “stumble” over. Are you stumbling over them all day long? What “problem” was there for command line interfacers to “stumble” over and cause them to see the light and say, Aha, I should solve the problem by inventing a GUI now?

    … rewarding real creativity

    And of course you are to be personally appointed as the final arbiter of what is “real” and “truly” creative as opposed to not quite so. Right?

  213. p.s. I didn’t intend anything personal by that last one. The point is that you need to think out how “real creativity” is to be objectively determined.

    BTW, the people who wrote the patent laws already did. So don’t work on it for too long a time. Just look up the law called 35 USC 103.

  214. Well, despite my obvious biases, I am really trying to understand how the law works, and how software patent defenders think about these things. step back, if I could ask you to clarify here, as there’s a distinction you’re making that I’m pretty sure I don’t get:
    You said earlier:
    > …not seeing that there is no clear line of division between “software” and “hardware”.
    and later:
    > No patent lawyer worth his/her salt claims an abstract concept. Instead they claim a physical process or a
    > physical machine, manufacture or composition of matter.

    The first statement seems to suggest there’s no boundary, while the second statement suggests that there is a boundary. I’ve tried to describe what I think that boundary is (roughly, ‘hardware is a physical realization’). To take your FPGA example for Jean, I’d take the physical gate array to be hardware and the particular field programming to be software. It’s my inclination to believe that it’s the hardware that makes for the boundary between patentable and not patentable, but I’ll admit I’m still not clear on the distinction between an ‘abstract process’ and ‘ physical process or a physical machine, manufacture or composition of matter.’ If you want to draw physics in to this, even equations or algorithms written on paper are ‘expressed by transformed matter and/or energy.’… so there’s something more to it.

    If that FPGA were programmed to solve equations using Newton-Rhapson, for example, I don’t know whether a patent claim would be rejected because its algorithm is part of mathematics, because it’s prior art, or both. If someone tomorrow were to come up with a cleverer way of solving equations, programmed into an FPGA and they submitted a patent claim, would they be trying to patent the ‘cleverer way’ (algorithm) or the software-hardware combination that is one specific instance of a solution?. And if the new algorithm is patentable, what is it that makes the old algorithm not patentable? Or, to factor a few things out of the equation, say Newton and Rhapson worked for IBM today. Would they have a case for patenting Newton-Rhapson?

  215. I am really trying to understand how the law works, and how software patent defenders think

    @pmorrison,

    You’ve thrown in a whole ton of new stuff into the kitchen sink and, unfortunately, my insinkorator (waste disposal unit) hasn’t the time to crunch through all of it.

    Please let me jump to a chase point that you did not yet raise -although you are converging on it.

    “Software”, what is this thing? If you say it’s just recorded code which is recorded on a tangible medium of expression, well then of course your equations solution using Newton-Rhapson (whatever that is) written on a piece of paper would qualify under that definition. Pretty much “everything” could be called “software” under that broad definition; all books, all statues (of the Michelangelo type); in fact pretty much every physical object which by existential definition, is an “expression” of itself (the inverse of the “this is not a pipe” existential concept).

    but let us not go that far out on the limb.
    Instead consider music, let’s say Jefferson Airplane rock ‘n roll, recorded on a CD (compact disc) as digital code.
    Is this software?
    Well yes, in a sense it is. Code is code.

    Let’s say a new rock n’ roll band records its new and nonobvious music on a CD.
    Should *that* err (cough cough) “software” be patentable?
    You might be surprised to learn that even we pro-patent fanatics will say that generally, no, the new music CD –even though it is a physical “article of manufacture” as we legal beagles refer to it, should not be patentable. But not for the reason you would hope for. Rather, because it is obvious to record music, even novel music, on a CD.

    By the same token, it is obvious to record new software on a CD. However, this recorded-upon-CD (another physical “article of manufacture”) is a functional part of a functional machine (of the computer whose machine behavior is being transformed by the recorded-upon-CD).

    *That* is something different.

    Do we have language tools to cogently express that difference?
    Well not really. Our language is not well enough developed to express many a strange concept. However, our failure to be able to express the difference between a CD containing new music and a CD containing new, nonobvious and useful “software” does not make the latter not-patent-worthy.

    My time has run out for now.

    I hope that gave you a small taste of how the “law” operates and what the underlying issues are.

    Good discussion.

  216. > but let us not go that far out on the limb.
    My intent was precisely the opposite… you drew a broad definition including ‘expressed by transformed matter and/or energy.’, but there’s something more precise involved in defining patentability.

    > Instead consider music,

    I’m no lawyer, but it seems that music and its performances are well-covered under copyright law. It is my understanding that the copyright holders of ‘Happy Birthday’ would collect their royalties whether the medium were a phonograph record (33 or 45), an 8-track player, a CD, an MP3, or whatever the next medium is.
    Unless they’re considering music patents, I’d prefer we avoid using examples from music as it muddies the water to my eye. Is that fair, or am I misunderstanding something here? (And don’t make me ask why don’t we just copyright software!)

    So, rather than ask ‘What if Newton and Rhapson were in a rock band’, I’d rather return to ‘say Newton and Rhapson worked for IBM today. Would they have a case for patenting Newton-Rhapson?’
    By the way, Newton-Rhapson is one of the earliest (but still used and taught) methods for finding the zeroes of a function. It was non-obvious at the time, it qualifies as an algorithm, and it could (and has been) programmed as software, in the last few decades usually late at night before the homework is due by junior engineering students in their numerical methods course.

  217. or am I misunderstanding something here?

    Yes, you are misunderstanding something here.

    In the domain of law, you can simultaneously acquire all sorts of “legal rights” in what appears to a lay person to be a “one thing”.

    You can have trade secrets, and patent rights, and copyrights and trademark rights and contract rights and more all out of one, apparently simple business venture.

    So by wishfully pointing at copyright law, you do not at all remove the question of whether you can have a patent for an article of manufacture (i.e. a CD) whose only difference over the prior art is that it encodes a new rock ‘n roll song. The same logic applies to an article of manufacture (i.e. a CD) whose only difference over the prior art is that it encodes a new and nonobvious machine process that a computing machine is going to perform.

    The other thing you are misunderstanding, and muddying the waters with, is the separation between “software” (the physical world kind) and mathematical abstractions.

    If the only (emphasis on the word “only”) inventive contribution you have is that of a purely mathematical algorithm (I’ll take it your N-R method is a numerical analysis method, yes?), then you cannot get a patent for that taken-alone act.

    However, if you come up with a computer process that greatly speeds up the time needed by the computer to produce solutions (using N-R or whatever), then what you have is a “faster” machine. By law, such an “improved” machine is patentable. See again, US code section “35 USC 101″ (google it).

  218. Thank you for clarifying.

    You can have trade secrets, and patent rights, and copyrights and trademark rights and contract rights and more all out of one, apparently simple business venture.

    Certainly. I would assume this carries down to the venture’s intellectual property as well. A narrower statement would be to characterize how many overlapping sets of rights apply to a single song or a ‘single article of manufacture’ (which I take by usage to be a term of art).

    you do not at all remove the question of whether you can have a patent for an article of manufacture (i.e. a CD) whose only difference over the prior art is that it encodes a new rock ‘n roll song.

    That’s good, because I think this is close to the question I am trying to isolate. Let’s take the four obvious cases:
    1 – old media (article of manufacture), old song
    2 – old media (article of manufacture), new song
    3 – new media (article of manufacture), old song
    4 – new media (article of manufacture), new song

    You’ve highlighted cases 4 and 2 as examples of something potentially patentable. What they have in common is the new song, though you (also) point strongly toward the article of manufacture as being important My (perhaps still mis)understanding suggests to me that copyright would apply to the new song in cases 2 and 4, and that it is the new article that makes 4 (and 3) potentially patentable.

    The other thing you are misunderstanding, and muddying the waters with, is the separation between “software” (the physical world kind) and mathematical abstractions.

    Well, that’s the essential question, I think. There are very smart people on both sides of it. You’ve made up your mind about it, and I’m trying to get at your reasoning. Thanks for taking the time to elaborate. As I said, I would like to understand.

    In its day, and since, N-R did speed up the machines it was used on (or built into),. I deliberately chose an example set in murky waters, to see if we could find it with our reasoning, and clarify the situation. We are discussing where the boundary between patentable and non-patentable is… and, hopefully, my original question of your claim that there is ‘no clear line of division between “software” and “hardware”.’

  219. We are discussing where the boundary between patentable and non-patentable is…

    No we are not doing all of that. I was just trying to give examples that flesh out the different issues.
    Perhaps this is where all the trouble starts, use of imprecise language.

    There is one section in USA patent law, 35 USC 101, which deals with what types of subject matter are “patent eligible” (this being the coined term used by the Bilski Supreme Court, whereas beforehand we legal doers called it “statutory subject matter”).

    There is another set of sections in USA patent law, 35 USC 102, 103, which deal with how novel and nonobvious the otherwise “patent eligible” thing/process is.

    There are yet other reasons why a thing/process may be blocked from getting a patent. That would just turn the muddy waters deep dark. No need to go there.

    The “Bilski” decision; which is the focus of the above IP WatchDog post is entirely limited to the 35 USC 101 question.

    THERE WAS NO SOFTWARE mentioned in the Bilski patent application and no computer mentioned.

    Those who are suggesting otherwise to you are misleading you –flat out.

  220. Fine, we’re not discussing the boundary between patentable and non-patentable. I’d still be grateful for the reasoning behind your claims as identified in the post to which you’re reacting. You’ve presented examples and made claims, and I want to understand your reasoning.

  221. OK

    Let’s back track.

    The USA patent law section 101 says that an “improved machine” is patent eligible subject matter.

    More to the point:

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    A hard disk is a machine component inside a computing machine just like a carburetor is a machine component inside a car.

    A programmed disk is different from an unprogrammed disk.
    A programmed disk bearing a computer program that makes the computer operate faster (or more efficiently, etc.) is an improved machine component and therefore “patent eligible”.

    This is no different than an improved carburetor that improves performance of car. It too is “patent eligible”.

  222. step back,
    Thanks for the illustration, that does help clarify your view. I’ve been busy elsewise, but will return to the discussion shortly. Thanks for taking the time to make your views clearer.

  223. Ok, I’m baack,,,

    A hard disk is a machine component inside a computing machine just like a carburetor is a machine component inside a car.

    A programmed disk is different from an unprogrammed disk.
    A programmed disk bearing a computer program that makes the computer operate faster (or more efficiently, etc.) is an improved machine component and therefore “patent eligible”.

    Here’s my issue with this argument: the ‘programmed disk’ (or CD, or FPGA) isn’t different in performance from the ‘unprogrammed disk’ as measured by the things you’d measure hard disk performance (rpm, read/write latency and throughput, MTBF, etc). The improvement came in the performance of the computer system with respect to some application, not to the computer system itself (which is unquestionably a machine).

    Let’s say that the machine was responsible for arranging pizza delivery. Let’s say we have two instances of such machines, PMA which delivers pizza in 40 minutes, and PMB which delivers pizza in 30 minutes. A change is made to PMA (now PMA’) whereby it now delivers pizza in 20 minutes, a doubling of its former speed, and 33% faster than PMB, a significant innovation. Now let’s say that PMA (and PMA’) is my house, and the change that was made was to the phone number of the pizza shop, one that was 20 minutes closer to my house. The physical change that was made was to update the hard disk containing my list of phone numbers.

    The addition that I made to your existing example was to view the whole house as the system to be measured, rather than the computer system in which the hard disk is installed. I think this remains within the spirit of the discussion, as the software changes don’t actually change the physical properties of the hard disk (rpm, magnetic technology, etc) or of the CPU (instruction set, cycles per second, etc) or any other physical element of the computer system, but only the effects of running some application in terms of that application’s performance. The application just happens to be pizza delivery rather than, say, web search.

    I recognize that this wouldn’t be patentable because it’s obvious (at least), but you’re essentially arguing that there are household performance changes (‘business processes’) that are patentable based on what is written on my hard disk. You argue that this is true because the hard disk changed in the sense that some new, more useful bit pattern was written there. (Do I misunderstand?)

  224. pm,

    Your example of the pizza store address data is a good one because it is midway between the music-on-CD example and computer-behavior (program) on-CD example.

    Using the word “patentable” is tempting, but you should avoid it.
    The real questions are:
    1) is it “patent eligible” under section 101?
    2) is it novel and nonobvious under sections 102 and 103 respectively?

    The critical battle line as between inventor and society (represented by the US patent office) has historically always been drawn at the 103 obviousness question

    The Bilski case (see topic of this IPWd post) can be seen as an attempt by anti-patent forces to establish a new, stop-the-patent beachhead line at the 101 line (think of potential stoppage lines, 101, 102, 103 being established in that order)

    One might try to believe the anti-patent forces won because the US Supreme court ruled that Bilski’s invention is “too abstract”.

    However, the US patent office is not a supreme court, it is an “administrative agency” and thus bound by administrative agency law (see 5 USC 706). Under administrative agency law, an agency cannot engage in arbitrary and capricious decision making. Merely saying, “this is too abstract” is arbitrary and capricious and thus in violation of administrative agency law. So the US patent office cannot do it even though the US supreme court can for the *one* case of Bilski v. Kappos