The Fundamental Unfairness of Retroactively Applying Bilski

By Gene Quinn
January 6, 2010

An article I published yesterday – Praying the Supremes Get Bilski Right in 2010 – has already started quite a stir, bringing out the anti-software patent advocates.  These folks always claim to be innovators and as innovators they know best and they state with an obviously flawed confidence that as innovators they can state with certainty that innovators despise software patents.  Of course, this is utter and complete nonsense.  Those who are anti-software patent are simply pro copying.  They don’t want software patents because then they cannot copy the work of others freely and without fear of being sued.  Those in the software industry who are not interested in software patents are not innovators, they are copiers.  They steal the work of others.  They also claim to have a sophisticated understanding of constitutional law and patent law, but reading what they say makes it apparent to anyone who is knowledgeable that they don’t know the first thing about law in general, let alone constitutional law or patent law in particular.  It serves no purpose to retroactively kill patents and applications that could have satisfied the standard announced in In re Bilski, but were written to satisfy the now defunct State Street test.  That is changing the rules in mid-stream and violates all ideals of fundamental fairness and due process.

One particular comment demands further exploration because it demonstrates a complete lack of understanding of basic patent law and patent applications in general.  In the above referenced article I discussed how it is fundamentally unfair to change the law in the middle of the game and leave at least a decade of patent applications and issued patents worthless.  This argument was characterized as “weak” by a anti-software patent commenter who said:

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.

While I go back and forth and get heated with this regular contributor who goes by the name “POP,” my intention here is not to make fun of him, but rather to address this issue.  In my experience as a teacher, when someone has a question it is likely that others have the same or similar question.  The law surrounding this is fundamental in the patent world, and explaining in depth the issues will clarify exactly why the Federal Circuit decision is nothing more than utter nonsense and fundamentally unfair, perhaps to the point where the decision creates a constitutional unfairness.  It should also be educational for inventors and others who are interested in learning more about the patent process.

First, at the time you file a patent application your invention is defined and locked in.  You are not allowed to update your disclosure to add material or information that was not in the application.  The only way to include new information, which the patent laws characterize as “new matter“, is to file a new patent application.  This new patent application will get a new filing date and the information in the application that was not present at the time of the earlier application will receive a new priority date.  An example will likely be useful, and since I am in the process of teaching the first live patent bar review course of the year in Washington, DC, I will use an example loosely based on something in our materials that I discussed earlier today with students.

Inventor Smith files a provisional patent application defining a widget on January 6, 2010.  After several months of continuing to work on the invention Smith makes a breakthrough and significantly improves upon the widget.  Smith has the option to file a subsequent patent application covering the improved widget.  This secondary application could be another provisional patent application or a nonprovisional patent application.  Lets say Smith files a second provisional patent application on March 5, 2010 covering the improved widget.  Smith would then be allowed to file a nonprovisional patent application wrapping together both provisionals, but there will be two priority dates — January 6, 2010 for the original and March 5, 2010 for the improvement.  Even if Smith files a nonprovisional patent application on March 5, 2010 that covers both the original and the improvement, the two versions of the invention will have different priority dates.  The rule is that whenever an invention appears in a patent application that is the priority date.  Priority dates are important for determining what is prior art.  Essentially, something that happens after your priority date cannot be prior art, so having an early priority date can be exceptionally important.

When you file a patent application and leave something out, on purpose or accidentally, you need to add it by filing a new patent application.  In the Bilski invention scenario almost all inventions subject to a patent application since the State Street decision in 1998 could be patented under the Bilski machine or transformation test, but the Bilski machine or transformation test is quite different than the useful, tangible or concrete result test from State Street.  So those who followed the law announced and considered settled for 11 years in State Street would find that under Bilski they cannot obtain a patent or the claims obtained quite commonly will be invalid.  This is not because the invention could not be defined to meet the Bilski test, but because the invention was defined to meet the then existing law.

Now, another illustrative example.  Lets say Inventor Doe filed a patent application in 2003 on a Bilski related invention.  The application was filed to satisfy the State Street requirements, and the patent issued in 2006.  Upon filing the patent application in 2000 Doe started using the invention, which is allowable and would not create a problem under existing patent law.  Now the law changes to the machine or transformation test and the application filed to satisfy the useful, tangible or concrete result test does not recite enough to satisfy the machine or transformation test.  The claims would be invalid, and that is exactly what is happening over and over again in the district courts across the US.  Unfortunately for Doe, since the invention has been in use since 2000 there is no ability to go back and file another US patent application to rectify the situation.  Under 102(b) a new patent application that would satisfy the Bilski test would be rejected because the invention has been in public use, and potentially on sale, for more than 12 months, which means no US application can be filed.  Doe is out of luck because the law changed and there is nothing Doe can do even though the application could have easily been written to satisfy the Bilski standard had that been the law in 2000.  The rules have changed and Doe is out of luck, even though Doe did everything right and followed the law.  That is unfair.

A similar result would be the same case even if the patent had not yet issued.  Inventor Jones filed a patent application in 2005 on a Bilski related invention.  The application satisfies State Street, but does not contain enough disclosure to satisfy Bilski.  The patent application gets rejected and there is nothing Jones can do, because like Doe, the invention has been in use and a new patent application would violate 102(b).  Jones did everything correctly, followed the well established law and then due to a fundamental shift winds up losing everything not because the invention has changed, but because the way the invention needs to be characterized is now different.  I know life is not fair, but this is ridiculous, and historically when property rights are affected in this way the Supreme Court has said changes in the law need to be prospective, not retroactive.  Those who order their affairs based on settled law should not have the rug pulled out from under them for having done so, which is exactly what is happening presently.

The patent laws prohibit applicants from making alterations to their applications.  That being the case principles of fundamental fairness demand that when substantive changes occur to the legal standards applicants should be given the ability to amend their application to bring them into conformance with the new requirements, or the new requirements be applied only prospectively.  Erasing value and forcing applicants to have satisfied requirements that could never be envisioned and are far different than existing legal requirements is not only unfair, but likely unconstitutional.  This has to violate due process.

Whether anyone likes it or not, regardless of the outcome of Bilski at the Supreme Court software will remain patentable.  Patent attorneys have always been at least one step ahead, and even if the Supreme Court tries to kill software patents we will figure out a way to characterize it so that it will be patentable.  It is ridiculous to have to act like the machine is unique when it is the set of instructions that turn the machine into a device that provides a new, unique and cool functionality.  Time will tell whether those on the Supreme Court understand patent law, technology and the US economy.  I think they do, and I think the resulting Bilski standard will kill pure business methods, but allow for software, medical devices, diagnostic process and treatments to remain patentable, and more easily so.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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

Discuss this

There are currently 112 Comments comments.

  1. Mike January 7, 2010 9:05 am

    This example illustrates the problem, patents cover those inventions made by man, “anything under the sun that is made by man,” except of course “abstract ideas, laws of nature and natural phenomena.”

    Any test after Bilski should not exclude those inventions found patentable under State Street because they should all meet the criteria for patentability and thus should have the exact same set of results. Attempting to quantify what is an invention, what is now and will be new and novel is inherently flawed because new inventions will by definition not be known when the standard is created. The founding fathers, congress, and past case law could not account for inventions that have yet to be created. Because they don’t know what is new and novel in the future, any tests will limit inventions made by man simply because they can’t comprehend what the inventions will be.

    There are other ways to limit inventions to the proper scope, 1) give the examiner enough time to review and prosecute applications commiserate with the difficulty of the technology; 2) provide an accurate, indexed database for each technology unit (this requires developing language to describe the invention and a method of searching); and 3) ensure the claims are limited to what is described and practiced in the disclosure.

    1) is self explanatory – look at the number of applications an examiner has to process and the difficulty of the technology. Currently each examiner gets rated based on time and not difficulty of the application. Thus more difficult technologies will get glossed over and simplified without understanding the details of the invention.

    2) electronics are hindered because there is not a good database of code for public access. The code has to be annotated, simplified to a standard flow diagram for comparison. Currently, someone can do the same algorithm in two different languages and draft two different applications. If each were worded independently, they would likely not be identified as art against each other. Solving a problem in Java that was solved years ago in Fortran does not rise to the level of patentability, although it may help the problem in front of you it is not “novel.” Re-inventing the wheel does not rise to the level of patentability.

    3) If there were a good search and an easy way to identify art, then the claims should be forced to read on only the novel portions of the inventions. Many electronics applications remove so many limitations the claims become overly broad. Because it is difficult to find art and there is no time to analyze in detail each possible permutation the claims read on, shoddy claims are being allowed. These claims read on existing technology, use language that makes it difficult to determine the scope of the claim (good or bad for the patent drafter), and then gets applied like a sledge-hammer when all they really have is a GARDEN WEASEL(tm).

    Electronics are hindered because there is no good public collection of relevant algorithms, annotated to allow comparison of the processes. I am sure software engineers, even in big companies, have re-invented the wheel over and over again. Just because a lot of time and energy are put into solving problems does not mean the problem rises to the level of patentability, especially when the problem was solved on a Cray computer 30 years ago (assuming it was put into the public domain and not trade secret).

    In conclusion, limits on patentability for electronic inventions (software and hardware) should come not from statutory definitions that are arbitrary and will falsely limit the next latest and greatest technology, but should instead come from existing art and appropriate claim scope (the claim should clearly define what is patented and CANNOT read on existing technology).

    Just a thought,

    Mike

    PS your man Doe is screwed, he practiced his invention in 2000 and didn’t file for patent protection until 2003, public use = statutory bar. I assume you wanted use and patent filing to be equivalent in the example above. Additionally, anyone who has an issued patent without any pending family members cannot “reopen” prosecution and file a CIP. They may be able to request reexam and amend the claims, but that cannot be used for broadening amendments and there is no new matter allowed.

  2. Adam January 7, 2010 10:27 am

    “Those in the software industry who are not interested in software patents are not innovators, they are copiers. They steal the work of others.”

    Sometimes I wonder if you throw out demonstrably false statements like this just to stir up the trolls, or if you actually believe it. In either case, using the language of moral panics surely doesn’t raise the quality of the discussion.

  3. Mike January 7, 2010 11:31 am

    Not another back and forth whine fest…

    Look, some examples are overboard on both sides of the coin. Don’t drag this down with the back-and-forth squabbling posted on the other pages. This is not conversation, but two boys screaming and yelling at the dinner table. I’ll have another glass of wine to dull the noise.

  4. DrRaoulDuke January 7, 2010 12:22 pm

    If you don’t know anything about software development, I could see how you could come to these conclusions. But you are completely wrong. As a software developer I’m not worried about being able to copy. The fear is that the algorithm I come up with has already been patented. It happens all the time actually. It’s the reason why you can’t patent a construction method for assembling a building. I’ve found that several of the algorithm’s/processes I’ve architected have patents. I did not copy them. I came up with these solutions independently, as many experienced software developers would.

  5. Gene Quinn January 7, 2010 1:05 pm

    Dr. Raoul-

    I don’t know where you get your patent information, but you are incorrect. You can indeed patent a construction method for assembling a building as long as it is new and non-obvious. In fact, many construction methods have been and continue to be patented.

    Yes, I know software developers are fearful of incorporating something that has already been patented, I get that. The trouble is that if you independently create something that has already been patented you are NOT an innovator. You are a copier. Whether you cut and paste or independently come up with it on your own you are a copier, and therefore an infringer. Patent law has never recognized independent creation as a defense, and it never will.

    Software developers constantly lament that they fear incorporating something patented and act like that is something unique to them. That is something everyone confronts, and exactly why patents foster innovation. If you concern yourself with not infringing you must push the envelope to come up with new and nonobvious solutions that do not infringe. Many software developers don’t want to have to do that and then incorrectly assert that patents stand in the way of innovation. That is not true. Patents stand in the way of copyists. Innovators come up with things never before done and are not impacted by patents.

    -Gene

  6. Mike January 7, 2010 1:44 pm

    The problem, as Dr Raoul points out, is that no one knows what it out there already. They don’t share information, there is no easy way to search all possible algorithms, and patents are being issued on technology that has already been developed. No, Dr Raoul does not deserve immunity for independently developing an invention that was already patented, but, inversely, the patentee does not deserve and should not get a patent when the invention has already been described.

    There are a large number of software patents that, if read carefully, would read on technology that existed before the patent was filed. A comprehensive database of software methods, annotated for easy searching is required to identify existing art, search for blocking patents, provide a resource for software developers, and get better patents issued.

    Or software engineers can continue to reinvent the wheel, over, and over, and over, and over again. Maybe, if worded correctly, they can get a patent on each identical re-invented invention.

  7. Adam January 7, 2010 2:47 pm

    “The trouble is that if you independently create something that has already been patented you are NOT an innovator. You are a copier. Whether you cut and paste or independently come up with it on your own you are a copier, and therefore an infringer.”

    Is “copying” a term of art in patent law? If not, I don’t think you’re using the right word. I don’t think common usage would describe independent discovery as copying. I believe patent infringement is the phrase you’re looking for.

  8. Gene Quinn January 7, 2010 3:00 pm

    Adam-

    Independent creation does not make one an inventor. That is black letter patent law. You do not need to actually copy in order to be an infringer. Those who independently create can and will infringe patent claims.

    -Gene

  9. Adam January 7, 2010 3:23 pm

    Gene,

    We’re mostly in agreement and I’m just pointing out your incorrect use of the word copy. Independent creators are not copiers. Independent creators are sometimes patent infringers.

    However, I would also say that independent creation of something not known to you necessarily makes you an inventor. That invention may or may not be eligible for patent protection, but you still invented something, and are therefore an inventor. Does patent law disagree with me?

  10. Mike January 7, 2010 4:03 pm

    An inventor, yes. Although you may have saved time and money by researching before re-inventing.

  11. blind dogma January 7, 2010 6:26 pm

    Doesn’t that make him a re-inventor rather than a pure inventor?

  12. step back January 8, 2010 4:15 am

    Gene,

    You and I are generally on the same wavelength when it comes to the patentability of software-containing machines, manufactures, processes and compositions of matter (where the last one may sometimes be called DNA or RNA). We both agree that if it is useful in a tangible and concrete way and it falls within the enumerated classes stated in law section 35 USC 101, it is patent eligible material.

    However I must quibble with one fine point assertion you make at comment #10.

    You said: “Independent creation does not make one an inventor. That is black letter patent law.”

    Actually, the almost-black (it’s slightly gray) law is exactly the opposite. 35 USC 101 begins with:

    “Whoever invents or discovers any new and useful process, …”

    This inherently means that someone can “invent” something (a process, machine, manufacture, or composition of matter) that is not “new” … and/or is not useful.

    In either case, whether it is not new or it is not useful, the whoever who does the inventing or discovering is still an inventor/discoverer, although not of patent eligible subject matter. US patent law is not about rewarding every “inventor”, but rather about handing the winner’s tape to that inventor in the foot race who is first to both conceive and diligently bring the conceived invention into the public lime light so that the public may benefit from the disclosure of new and nonobvious and useful subject matter.

    So yes, two computer programmers can each independently invent a same software-implemented process or software-executing machine and each is then rightfully an “inventor”. But only the first who does not conceal, suppress, etc. and is diligent about bringing the invention to the public is the one who can get a patent for it.

    What I sense from computer programmers who are here complaining about the patent system is the elementary school student’s independent home work mentality.

    If two students each interdependently do their home work and produce the same result, but one gets an A+ from the teacher and the other gets a B-, there is a sense of outrage and unfairness.

    But hey, this is not your 5th grade school room any more and the USPTO is not your teacher. The USPTO is the judge of the footrace set up by the US Congress. The USPTO determines who is first to finish their homework and diligently submit it. The first gets an A+ and the second an F-.

    Why? Because it says so in 35 USC 102. It is what Congress commands the USPTO to do.

  13. Blind Dogma January 8, 2010 8:35 am

    step,

    Be careful – such well-reasoned arguments may dent both sides formidable defenses. Are you trying to ruin my Kool-Aid sales?

  14. Just visiting January 8, 2010 9:17 am

    A couple points.

    1) I believe that one can be an inventor but not the first inventor. A second inventor may come up with something new (to him), but that doesn’t mean he is entitled to a patent if someone else also came up with the invention. Also, regardless of the terminology, their should be no prize for the second inventor (e.g., a defense against infringement). The “race” to the USPTO fosters innovation. If the first place winner gets everything and the second to nth place finishers get nothing, there is a great incentive to innovate, and to innovate fast. However, if everybody gets the same prize, there is no need to try as hard.

    2) To follow up on a point that Gene made on new matter I’ve seen Examiner willing to introduce new matter into the specification in a back-handed manner. A common problem with Beauregard claims (i.e., computer readable medium claims) is that many specifications written 5-10 years ago included examples of computer readable medium that could be considered signals or other types of intangible medium. What some Examiners request is that the references to the intangible medium be deleted from the specification — otherwise the claim will be rejected under 101. What the Examiners (and unsuspecting practitioners) don’t realize is that (i) claim terms are given their broadest, reasonable meaning to one skilled in the art — so deleting something from the specification doesn’t matter and (ii) attempting to redefine a word (i.e., computer readable medium) by deleting something in the specification is changing the specification (i.e., introducing new matter — albeit narrower matter).

  15. broje January 8, 2010 11:04 am

    Gene, like Stepback, I am on your side regarding Bilski, patentability of software, etc. But I think you are using the word “copy” in a way that most people will disagree with. In software, I think it is correct to say that, without patents, companies will tend much more to take a wait and see approach and wait for someone else to innovate and then do what they do. But for developers who are innovating, they will often find that some portion of a program they originated has already been patented. That’s not actual copying, to use the copyright term. But originality is no defense to patent infringement. You know this, I am sure. I just think in the future you might want to make it clear that software patent opponents want to either copy other’s innovations, or are upset at the prospect of losing the race that patents create in order to promote the progress of the useful arts. Otherwise, you will keep running into this problem with people misunderstanding what you mean.

  16. Gene Quinn January 8, 2010 12:45 pm

    Broje-

    I don’t have any disagreement with what you say. I will point out, however, that I am using the word “copy” on purpose. The distinction you make is correct, but in order to boil it down I am using the word “copy” and “copying.” The reason so many software types don’t get this at all is because they think “copying” means that they have to literally copy. They think that independent creation makes them an innovator, when in fact it does not. They don’t understand that when you are second that means you did not innovate.

    Your point is well taken.

    -Gene

  17. Gene Quinn January 8, 2010 12:58 pm

    Step & Just Visiting-

    I understand what you are saying, and you are obviously correct. I started playing a little fast and loose, and shouldn’t have used the word “inventor.” But you cannot get these people to even understand and accept the reality that software is not math. They apparently think you can solve a software program like a mathematical equation. They clearly think that if they come up with it themselves then they should be able to use it regardless. They think they are innovators when they do the same thing others have done.

    102, both in the preamble and specifically when you try and understand the difference between 102(a) and 102(f), it is certainly possible to be a second inventor who is just not entitled to a patent. With 102(f) the focus is on you not being an inventor period, so the law clearly recognizes that there is a difference between someone who contributes no conception (i.e., a taker under 102(f)) and one who did contribute conceptions as an inventor but was not first and, therefore, not entitled to be a patentee.

    Having said this, I do think the thrust of my point is correct. It is not accurate to call a second inventor an innovator. Innovation requires one push the envelope, be first and contribute something useful, new and non-obvious. If all you are doing is independently creating what others have previously done then you are not an innovator. The patent laws do not recognize independent creation as a defense. Unfortunately, copyright law does recognize independent creation as a defense and the anti-software patent crowd think they are experts on everything and don’t worry themselves with legal realities and distinctions.

    Thanks to you both, and Broje, for keeping me honest and not allowing me to be sloppy with the wording.

    -Gene

  18. step back January 8, 2010 6:34 pm

    Gene,

    I don’t know how you find the time to keep this blog going, but I really enjoy it.

    Thanks
    –step back

    p.s. As for your word battles with the software guys, it’s all Chesire Cat stuff. They choose to have the word bite “software” mean a purely mathematical model of selected aspects of computer execution and you choose to have it mean something else. We just seem to go round and round like cats chasing our tails without ever getting anywhere. 😉

  19. A. Rebentisch January 9, 2010 3:52 am

    “Patent attorneys have always been at least one step ahead, and even if the Supreme Court tries to kill software patents we will figure out a way to characterize it so that it will be patentable. ” … “Time will tell whether those on the Supreme Court understand patent law, technology and the US economy.”

    Quite telling. I am impressed by your honest description of professional disloyalty.

    “In the above referenced article I discussed how it is fundamentally unfair to change the law in the middle of the game and leave at least a decade of patent applications and issued patents worthless.”

    From a legal perspective it is a non-argument.

    “Those in the software industry who are not interested in software patents are not innovators, they are copiers. They steal the work of others. ”

    Learning curve ahead…

    Software works are protected under the Berne Convention. Patents do not relate to works but inventions. Software “inventions” are trivial and useless for professionals skilled in the art because the object is not scarce under laissez-faire. Ideas are cheap. Why are you against free trade?

  20. pop January 9, 2010 9:15 am

    Quote from Gene –

    “Under 102(b) a new patent application that would satisfy the Bilski test would be rejected because the invention has been in public use, and potentially on sale, for more than 12 months, which means no US application can be filed. Doe is out of luck because the law changed and there is nothing Doe can do even though the application could have easily been written to satisfy the Bilski standard had that been the law in 2000. ”

    So instead of blaming the USPTO for not acknowledging this problem and coming up with a solution for these people who might be affected by progression of the law, you attack the ignorance of anti-software patent advocates and use quotes from me in order to prove your point?

    Don’t get me wrong, I’m not upset that you quoted me, and I have no doubt my ignorance is everything you claim it to be. My problem is that you are attacking people like me instead of the people running the system who set it up unfairly in the first place and who won’t do anything to change it. I know you are not a supreme court justice or anything, but you aren’t fresh out of law school either. Why don’t you use your influence to try and get some real change in motion? Maybe it is because you don’t like Bilski so you would rather use this issue to demonize Bilski and anti-software patent advocates instead.

    Quote from Gene –

    “Independent creation does not make one an inventor. That is black letter patent law. You do not need to actually copy in order to be an infringer. Those who independently create can and will infringe patent claims.”

    and

    “If all you are doing is independently creating what others have previously done then you are not an innovator. The patent laws do not recognize independent creation as a defense.”

    You always make it sound as if people who independently invent after it has already been done are just garbage, as though it is worthless after that, except that it isn’t worthless to the people who benefit from it. Because it is independent, it is not copying, which goes against all your over-generalized comments about how all we want to do is copy. Different cultures and civilizations independently invented lots of useful things, like languages, trade, and writing. Just because somebody else may have done it on the other side of the planet before they were born doesn’t make it any less amazing to those peoples.

    I realize that things aren’t like that anymore, but the basic premise still remains. I had an idea for a cooling mat for a laptop before anybody patented it, and probably so did a lot of other people. It isn’t hard to figure out that a vented, non-conductive surface will keep it from over heating on your lap, but when somebody decided to write it up in a patent application, then suddenly it was non-obvious and new, aside from just being useful.

    You can try to claim that I am just being a bad sport because I didn’t have the sense to file the patent first or some other argument along those lines, but as far as I can see no patent should have ever been issued for that.

    You say that it is fundamentally unfair to retroactively apply Bilski, and I think it is fundamentally unfair to punish independent re-inventors.

  21. pop January 9, 2010 9:17 am

    I forgot to add this one

    Quote from Gene –

    “Whether anyone likes it or not, regardless of the outcome of Bilski at the Supreme Court software will remain patentable. Patent attorneys have always been at least one step ahead, and even if the Supreme Court tries to kill software patents we will figure out a way to characterize it so that it will be patentable. ”

    At least it makes me happy to hear that patent lawyers care about the spirit of the law and making sure the will of the people is done.

    *sigh*

  22. Gene Quinn January 9, 2010 11:16 am

    A. Rebentisch-

    It is clear that you know nothing about the law, and I suspect nothing about software either.

    You say: “Quite telling. I am impressed by your honest description of professional disloyalty.”

    Either you cannot read, which seems like a real possibility, or you are intellectually dishonest yourself. Representing clients and getting rights they are entitled to under the law is not professional disloyalty. It is what is expected and required. Whenever the law changes attorneys adhere to the new standards and operate within them. The fact is that no matter what the Supreme Court does, or any other court does, to try and kill software it will remain patentable. They would have to say that machines are not patentable any longer, which they will never do.

    You say: “From a legal perspective it is a non-argument.”

    The fact that you do not possess the ability to understand the argument/logic does not mean it is not an argument.

    You say: “Software works are protected under the Berne Convention. Patents do not relate to works but inventions. ”

    This is the first thing you said that is correct, although the conclusions you draw from it are ridiculous. Software can be BOTH copyrighted and patented. You copyright the source code, you patent the process. Can you please explain why that is so hard for you to grasp.

    You say: “Why are you against free trade?”

    Why are you pro-copying? Doesn’t the fact that you are not an innovator when you copy what others have created bother you?

    -Gene

  23. Gene Quinn January 9, 2010 11:29 am

    POP-

    You say: “My problem is that you are attacking people like me instead of the people running the system who set it up unfairly in the first place and who won’t do anything to change it.”

    Do you read anything I write other than software articles? For years I have been doing just that.

    You say: “You always make it sound as if people who independently invent after it has already been done are just garbage…”

    Not true. But it is clear that those who are not first are not entitled to receive a patent and if someone was first and did get a patent then the second to independently create is an infringer.

    You also need to understand that there is an entire industry that sucks $300 million a year from independent inventors by scamming them into believing that when they re-invent something that has been patented before they can get a patent and make millions on their ideas or inventions.

    I am happy for people who can solve problems and solutions, but when those problems and solutions come after someone else has done it that does not make them an innovator. This whole argument started when I had the audacity to recognize that innovation requires being first. Anti-software folks (although not you) frequently claim they are innovators. They want to wrap themselves in the mantle of innovation and say that what they are doing needs to happen. When in fact they are not innovators, they mostly just want to ignore the rights of others, take what they want, not be concerned if they are engaged in patent infringement and re-invent the wheel (metaphorically speaking). Re-inventing is not innovation.

    You say: “when somebody decided to write it up in a patent application, then suddenly it was non-obvious and new, aside from just being useful.”

    That is an incorrect statement of law. The fact that something has never been done before does not mean that it is non-obvious. However, if there is an allegedly easy solution to a well defined problem and the solution has not been forthcoming it is disingenuous to say that it is obvious because if it were so easy, so obvious and would address a well defined problem why didn’t someone do it previously? Frequently the trouble with those who do not like the patent system is they apply the law of obviousness in hindsight, which is impermissible legally speaking. Everything is obvious in hindsight. The question is whether it is obvious prior to the invention, and with many (if not most) of the patents the anti-software patent advocates hate there is simply no evidence to suggest it was obvious. Generalizations and hindsight are not enough.

    You say: “I think it is fundamentally unfair to punish independent re-inventors.”

    And that is what you are really saying is you are not against software patents, but you are against all patents. That is exactly what the anti-software patent advocates want… NO patents period! It is not fundamentally unfair to punish re-inventors. The patent system is established to reward innovation. Someone who re-invents does nothing to forward innovation because it has already been done before. Go ahead and re-invent, but after the patent expires.

    -Gene

  24. Gene Quinn January 9, 2010 11:36 am

    POP-

    You say: “At least it makes me happy to hear that patent lawyers care about the spirit of the law and making sure the will of the people is done.”

    The will of the people? Are you serious? The overwhelming majority of people want patents. They understand the advantage they provide and they can enable the American dream.

    Tell me, what do you think about healthcare and all the initiatives in Washington, DC where overwhelming majorities of people don’t want the Obama agenda? Over 70% do not want Obama care, but that doesn’t matter. Is that being against the will of the people?

    I guess you don’t understand as much as I thought you did. When the Supreme Court comes down with a ruling we will comply, but they will not end the patent system as you wish they would. That means we will simply articulate software within the guidelines. The truth is, we could live with the Bilski standard as is moving forward because now that we know the magic words to use to explain software we can patent it. The trouble with Bilski is that a decade of innovations that could have been articulated to meet the Bilski standard are going to be flushed down the toilet if the CAFC test stands.

    Whether you like it or not, software is and will remain patentable. That is the whole point, which you obviously miss. Given that reality, which everyone in the industry knows to be 100% true, why would we kill a decade of innovation? Changing the law is nothing more than changing the rules of a game in midstream because you don’t like the outcome. It is like the kid who owns the ball leaving upset with the ball after being called out.

    It is fundamentally unfair for government to change the rules after people have ordered their affairs according to the law. The fact that you don’t understand that is extremely telling, short-sighted and demonstrates that you do not have a broader sense of what is just. It is all about what is best for you, and that is extremely sad.

    -Gene

  25. pop January 9, 2010 2:26 pm

    -Gene

    “Do you read anything I write other than software articles? For years I have been doing just that.”

    Well, actually no. I found your site at when looking for material on Bilski and I have read a few non-software entries, but for the most part I will admit that I am not familiar with your whole body of work. This however is not one of the exceptions you mention.

    I have no problems with lawyers representing their clients and doing everything they can to get the most for them, that is your job and I would never ask you not to do it. However, what about the defense attorney who knows his client is guilty of murder? I don’t even have a problem with patents being rewritten to comply with new rules, and actually that is what I was getting at before.

    You said this..

    “When the Supreme Court comes down with a ruling we will comply”

    But you said this in the article..

    “even if the Supreme Court tries to kill software patents we will figure out a way to characterize it so that it will be patentable.”

    That seems like a contradiction to me. That to me implies that what you are saying is that even if the clear intent were to end software patents, you would still try to fit in the loop holes. That may not be as morally objectionable as defending a guilty murderer, but it is still the same idea. You are basically saying you would do whatever it takes to cheat the system and take advantage of opportunities to do so. As unethical as most people see lawyers, for the most I have no problem with what they do, but to me this seems to be crossing a line. Just because you can, doesn’t mean you should.

    I do feel bad for people who get swindled by companies who trick them into thinking they can get patents for things they can’t, and I do feel sorry for people like the hypothecial ones you outlined who might be punished by a sudden application of Bilski, however, I don’t see why it has to be that way. If the patent doesn’t meat muster under the new ruling, then the patent should be rejected, but what if it is just a case of phrasing things the wrong way even though the patent is valid under the new ruling or both, which is what I think you are really getting at?

    Why can’t they just allow people for a specified period of time who filed applications between a fixed start and end date to file a form or submit a new application, or whatever is most convenient to process for the USPTO to make changes to the wording and phrasing of their applications in order to comply with the new ruling? This seems like a common sense solution to fix these problems. Exceptions are made all the time for people in most government and private practice systems, so why can’t the USPTO make exceptions for these people? I agree that it would be unfair to them, but why is it so difficult to remedy?

    The way the system works now, the man who invents on Monday is treated like a hero and branded an innovator and treated to a 20 year monopoly and absolute control lock on everything relating to it, but the man who did the same on Tuesday has his invention taken away from him and is branded as a copier and a thief who must bow down before the Monday man to use his own invention.

    I am not advocating an end to all patents and I’m not even advocating an end to all software patents, but ignoring the bigger picture, surely you can see how unfair things are for the Tuesday men of the world? I didn’t suggest that there was anything practical that could be done about it, but was merely pointing out how unfair it actually is.

    “Tell me, what do you think about healthcare and all the initiatives in Washington, DC where overwhelming majorities of people don’t want the Obama agenda? Over 70% do not want Obama care, but that doesn’t matter. Is that being against the will of the people?”

    70%? I’m not sure where you got that number from but I don’t believe it. Clearly opinions are split, but 70% seems like it came from a loaded survey. This is getting into politics however, and I’m not sure we want to drag things there. The point I was trying to make is that people vote for their president and the congress who appoints the supreme court justices and if they, as you suggested, show a clear intent to try and kill software patents, then I would say that is the will of the people.

    No good survey has ever been done, or probably ever will be done on how the public feels about software patents or even just patents in general and even if there were the majority of the respondents would either be to ignorant to have an opinion, not care, or be misinformed in some way by zealots on both sides.

  26. A. Rebentisch January 9, 2010 3:38 pm

    “Representing clients and getting rights they are entitled to under the law is not professional disloyalty.”

    It is disloyal to the highest court of your nation to tell the judges: Don’t change it because we will find a way to circumvent it. Your disrespect to the judges is also expressed by your phrase “Time will tell whether those on the Supreme Court understand patent law, technology and the US economy.”.

    I found that quite telling. Of course you claim without any evidence I don’t understand the law, the supreme court judges don’t understand the law but you do.

    “The fact that you do not possess the ability to understand the argument/logic does not mean it is not an argument.”

    It is a wacky argument from a legal perspective. The Supreme Court gets things right, it does not compromise because of political considerations. And argument about the effects of a ruling on an established practice is generally invalid.

    “Why are you pro-copying? Doesn’t the fact that you are not an innovator when you copy what others have created bother you?”

    Because the “object” that is awarded a privilege is not scarce. From an economical perspective it is meaningless to incite a higher production of abundant objects. As you know there is no sound economical argument for a market allocation with a patent system. Freedom of business is important. Patenting as a second best scenarios does not convince me in the field of software.

  27. Gene Quinn January 9, 2010 4:51 pm

    A. Rebentisch-

    You have no clue what you are talking about, and really should stick with things you understand, if in fact there are things you do understand.

    So do you think the Supreme Court was right when it ruled that a black man was property?

    Stating that “the Supreme Court gets things right” demonstrates that you are overwhelmingly naive. In the patent field the Supreme Court rarely gets things right and announces test that simply cannot be followed and contradict other legal tests and principles.

    Your focus on scarcity demonstrates you do not understand patent law. Patent rights exist to foster innovation (which patents clearly and overwhelmingly do) not to recognize rights in scarce resources. By definition intellectual property is not scarce. You expose the fact that you really don’t know what you are talking about when you focus on real property issues of scarcity.

    You can remain unconvinced if you like, and even believe it is disloyal or disrespectful to say the Supreme Court decision won’t matter. All I am stating is the reality of the situation. The more controlling the law seeks to become the more loopholes that are present and my clients will exploit them. There is nothing wrong with taking advantages allowed by law, and it is unethical not to represent clients vigorously and help them exploit rights they are entitled to receive.

    -Gene

  28. A. Rebentisch January 9, 2010 6:34 pm

    Gene,

    you are offensive which shows the weakness of your argument.

    > Your focus on scarcity demonstrates you do not understand patent law. Patent rights exist to foster innovation (which patents clearly and overwhelmingly do) not to recognize rights in scarce resources.

    Your argument reveals that you don’t understand economics, but that is not ad hominem, because most persons from your profession do not get that. It is the killer argument.

    Let me explain. We have two scenarios: X = Software.
    1. free market in X
    2. market where patents are granted by the government in the field of X.

    2 is the scenario where the legislator intervenes with the incentive system “patent granting”. The legislator could as well intervene with other instruments of course. The patent system here is like a “mouse trap” or “medicine”.

    So the simple rationale is that a market allocation 2 has to be overall “better” than market allocation 1.

    > Patent rights exist to foster innovation (which patents clearly and overwhelmingly do) not to recognize rights in scarce resources.

    We have the following conditions:
    1. the legislator follows the objective to promote innovation.
    2. the legislator has the competence to promote innovation with a patent system (ok)
    3. Under scenario 2 “more” innovation are actually produced than under scenario 1 (mind the weighted efficiency loss)
    4. The incited object is scarce under laissez-faire (scenario 1)

    What is awarded a patent by the patent system: a “software invention”. If that matter is abundant in scenario 1 (not scarce) you grant privileges to meaningless matter in scenario 2. If your “right” is designed in a way that it relates to an object that is “hot air” the whole incentive mechanism is bound to fail. And exactly that is what happens. Developers say software patents are “trivial”. That does not relate to non-obviousness (a general clause) but the non-scarce/abundant nature of the object, the “software invention”, for which a patent is claimed.

    But back to your argument:
    > Patent rights exist to foster innovation (which patents clearly and overwhelmingly do) not to recognize rights in scarce resources.

    How could they forster “innovation” if “innovation” was abundant/non-scarce without a patent system?
    Therefore your premise is that innovation is scare without a patent system, and you would get more of it in the field where we apply the patent system.

    I contest that software inventions are scarce. That breaks the foundation of the patent system in the field. Lack of scarcity breaks any incentive system application.

  29. Nate January 9, 2010 8:32 pm

    There is a difference between a copyright and a patent. To state that people who are “anti-software patent” want to steal the work of others is absurd.

  30. Gene Quinn January 9, 2010 8:40 pm

    Nate-

    There is a difference between copyrights and patents, and my statement is not at all absurd. I’m sure you know that which is why you protest. Those who are against software patents are because they want to do what they want regardless of the fact that they are infringing true innovators ( ie, those who came up with the invention first).

    -Gene

  31. A. Rebentisch January 10, 2010 6:00 am

    Let me add, from a scientific standpoint it is important that you offer a way to make your argument falsifiable.

    The problem with your profession is that we have the sales argument: “Patents are good for X because they foster innovation.” And regardless what you insert for X, whatever the right for X is “designed”, what are the specific conditions, it is always said to be “true”.

    Furthermore “innovation” cannot be measured, so it is measured by the number of patents which makes it circular.

    Core terms of patent law as e.g. what constitutes an invention are open. Scholars cannot tell you what is no invention.

  32. Gene Quinn January 10, 2010 12:01 pm

    A. Rebentisch asks: “How could they forster “innovation” if “innovation” was abundant/non-scarce without a patent system?”

    Where is there abundant innovation without a patent system? By your rational third world and undeveloped countries that have no patent system would be thriving, being free from the oppression of a patent system. History and factual reality prove your position wrong, yet you don’t have the ability to see that.

    As far as me being offensive, not true, although it obviously fits within your world view to believe those who are correct and willing to stand up for their beliefs are offensive. If only we would shut up, right? If only we would have a “tea party” as you suggest so that you, CNN, the NY Times and liberals everywhere could ridicule.

    My arguments clearly demonstrate I understand economics and that you are unwilling to acknowledge truth and reality.

    Having said this, I am all for an experiment. Why don’t we pick a country a developed nation to abolish their patent system and we see what happens. In order for a true scientific test we need to have a control. The US can keep its patent system and expansive view of what is patentable, and some other country, perhaps France, could abolish patents. Then we will see what happens.

    Of course, we know what will happen. That is because patents are required to have an innovation based economy. That is why China has started really recognizing patents, and so has India. Both economies are growing after recognizing IP rights. We also know that industries leave countries that do not have favorable patent laws, which is why the biotechnology and pharma industries have largely left Europe and gone elsewhere.

    Keep up the good work though. Your crazy, ridiculous positions give me plenty of fodder to demonstrate who is right and that you are wrong.

    -Gene

  33. EL January 11, 2010 5:14 am

    Hello,

    I’m a mathematics major who would like to offer an outside perspective of this discussion.

    “Those who are anti-software patent are simply pro copying. They don’t want software patents because then they cannot copy the work of others freely and without fear of being sued.”

    The above comment is a logical fallacy. Software products are protected by copyright law. Even if software patents were to be tossed out, people would be unable to copy freely.

    You also display a very impressive level of doublethink. While you make such comments about the anti-software patent community such as GNU and open source, you select open source and GNU software. The blog software you are running is GNU software. The web server you are running is Apache and open source. The operating system of your server is Linux, and it is open source as well. I would also point out that Linux is reported to be in violation of hundreds of patents owned by other companies. Yet you have selected these products despite your philosophy.

    I’m personally against the concept of software patents, and I’m not a programmer nor do I have a desire to be a programmer. The problem with software patents is their scope and domain. The scope and domain of both software and business method patents are very broad, and they effect many disciplines in a negative way. Supporters claim that since patents in one area have been successful, patents in all areas will be successful. Empirical evidence suggests that patents can be harmful or helpful, and people should decide what effects patents have in a specific area instead of making a general catch all ideology.

  34. Mike January 11, 2010 10:24 am

    The arguments above have again turned to bickering instead of rational statements.

    1) The majority of people don’t understand patents or do not like patents.
    In general people don’t like laws unless they are the ones being harmed. Perfect example, speeding. You hate it when you get a speeding ticket and think that the system is “stupid.” On the other hand, when someone is riding your butt and flies by at 95, you get a little tingle of joy when you pass them later as they get a ticket.

    2) Copying and later independent development are two different things.
    Yes, independent development is different than copying. Copying is a direct act of using others works without paying for them. Independent development uses thought and energy to solve the same problem and come to the same solution. There is also a difference in the courts and blatant copying may lead to treble damages while independent development would not lead to treble damages until after notice was received. Both are acts of infringement.

    3) Innovation takes time and money, therefore patents are required to increase the quality of inventions.
    If innovation happened everywhere and there was very little required to achieve innovation, then patents would not exist. There is both a financial incentive and a benefit to patents.

    4) Copyright and patent protection are independent.
    Copyright protects the letter of the code but not the function, lasts for 70+ years after the artists death, and is easy to design around (simply rewrite the same functional activity using different language, order, and/or phrasing). Patents protect the function. Software users/programmers know that software accomplishes a function. Software does not merely change the position of electrons randomly, it solves complex equations, transforms input to output, and gets stuff done. Software does many functions from transmitting words, text, and data to directing machines, imaging, and navigating. Each and every programmer has analyzed a problem and developed a software “machine” to solve that problem. It is not simply an abstract idea or law of nature but a functional tool. In that respect software deserves patent protection and others should not be able to copy (or independently use) the novel tools developed by others. WIthout protection there would be a decline in available programs and software. Adobe Reader, Windows, iPhone Apps, etc. have patents and protection to prevent copying. These were all made with the understanding that the inventors/assignees would be able to recoup some of the development money by having a period of protected market share.

    The good thing about software patents, they are easy to design around. For the most part, software patents are tied to specific language in the claims. Frequently it is fairly easy to avoid certain key elements in the claims to achieve a software that is functional without infringing the patent claims.

    In conclusion, the function of software deserves patent protection if it is new and novel. Although copying and independent development are different, they can both lead to infringement. The copyists (everything should be free and shared) disregard for patent protection is short sighted and will lead to a sea of little or no new products. The model already exists, because the copyists aren’t happy with what currently exists, they want to copy that which is new, novel and costs money to develop. That said, we should develop a way to squash bad patents when they are issued. Unfortunately, it is very difficult to search and identify the best art for software patents because there is no uniform system of indexing.

    All the best,

    Mike

  35. Gene Quinn January 11, 2010 10:40 am

    EL-

    You say: “Software products are protected by copyright law. Even if software patents were to be tossed out, people would be unable to copy freely.”

    That is simply not true. The copyright in software protects the source code, not the functionality. So if you write a program I can recreate the software program exactly and there is absolutely nothing you could do to stop me so long as I do not literally copy (i.e., copy and paste) your code. Would you consider someone who recreates your software to provide the exact same functionality with the exact same look to be one who has copied? Most would, and without patents there is nothing you can do to stop it.

    -Gene

  36. pop January 11, 2010 10:58 am

    -Gene

    If you don’t release your source code then copying isn’t really a problem anyways because of the excessive cost and effort required to reverse engineer, and that is ignoring design patents for the interface and trademarks which are separate issue to avoid copying the GUI.

    As I have tried to explain in the past, most people who make claims like you do don’t understand how software works. If I write a program in C++ and compile it, the result is not C++ anymore. All languages including assembly to some extent are merely symbolic and must be translated into machine code before they offer any functional value, which is what you are arguing needs to be protected.

    In addition, most compilers optimize and re-factor your code for you before they convert it, which means that the code you write probably isn’t even the code that is being compiled. You can copy and paste my code and then make changes to it to avoid copyright, but that doesn’t mean it won’t compile down to the same functional machine code anyways.

    What I am trying to say, and have tried to say in the past is that the code I write IS NOT the code that runs on your computer, unless I went back in time sixty or seventy years and started literally writing machine code. The bottom line here is that everything related to software patents has nothing to do with computer code or if it is or is not math, but weather or not processes should be patentable or not. What is really being protected in a software patent is a process, nothing more, and nothing less.

    Actually, I do think you understand this, and I also know that you are in favor of all process patents as far as I can tell, and you are against silly and useless software patents that probably shouldn’t have been issued. You even said as much about the Amazon one click patent, which is a hobby horse for anti-software patent advocates.

    I think the only real difference in opinion between the two of us it that I would like to see more done to stop bad software patents on things that outside of a technical setting would appear obvious to anybody, and more rights for independent inventors, which you see as irreconcilable to patents in the first place.

    A complex and useful software program can incorporate hundreds or thousands of processes in order to do it’s job, some of them may be new and non-obvious, but many of them won’t be, at least there will be many more that are not compared to those that are. In addition, the pace of change in software is very rapid. The lifespan of four patents would cover the entire history of computers and I don’t think the current patent system really pays respect to the changing times.

  37. Gene Quinn January 11, 2010 11:54 am

    POP-

    Do you really think an electrical engineer with a computer engineering focus doesn’t understand how software works? You do realize I have written software programs, correct? You assume that people who don’t agree with you don’t know reality. Well I do.

    Your continued focus on reverse engineering not being practical is missing the point. That is true, but because it could be reverse engineered there is no trade secret. That is the law, whether you like it or it seems fair.

    In terms of where you think we disagree, obviously you don’t read everything I write on IPWatchdog.com. To suggest that we disagree because you want bad software patents stopped and I don’t is absurd. The reality is that there are a ton of bad, crappy software patents that should never have issued and could never be enforced. I say that over and over again, but for some reason it never gets through. In previous chains we have even gone at it discussing the fact that programmers who order their affairs by assuming they understand patents and not doing something because of the title of the patent or a picture in the patent are creating their own problem. The fact that they don’t want to figure out what they can do and can get away with does not mean there is a problem with the patent system. It means they are obviously content to allow crappy patents and invalid claims that could never be enforced dictate their destiny.

    Answer me this. If you write a program and I like it and then make an exact replica in terms of look and function, would you consider that a copy?

    -Gene

  38. pop January 11, 2010 12:11 pm

    -Gene

    I was never trying to imply that you don’t want to see bad software patents stopped, in fact I even went out of my way to point out a recent example of you pointing to a bad software patent. If that part was unclear then I apologize.

    I also understand that while difficult, the difficulty of reverse engineering isn’t and end all be all protection for trade secrets, and I wouldn’t expect the law or investors to see it that way. I am simply trying to point out that because of the difficulty it probably isn’t done that often and that if trade secrets do get out it is not because of reverse engineering. If I am not completely wrong, patents are supposed to end trade secrets by giving inventors a reason to publish them, no?

    As far as your question about a copy is concerned, then yes I would consider that a copy in the loose sense of the word, but more appropriately a knock off. A copy implies that it is exactly the same, which copyright already protects against. If I copy a CD that has a program on it and give it to you, then that is a copy, but I write a program that has the same interface and functionality then it isn’t really a copy, but an imitation or knock off of the original.

    Some people say that copyright is enough, and in fact I have said that in the past even though I have changed my mind on that issue since then, however you need to protect against the knock-offs as well as the exact copies. Patents on things like MP3 and RSA seem reasonable to me and things like one-click do not, but I don’t think we have any disagreement there.

    On the other hand, part of what drives our capitalist economy is competition and selection, which you don’t get with a monopoly. Who is to say that the guy doing the knock-offs isn’t doing a better job than the guy who created it? I am not against giving people the ability to recoup their costs, but should we give them the power to cripple a whole industry for 15 or 20 years? Microsoft will probably settle with i4i, but what if they don’t? What if i4i says we don’t want your money? How will that negatively affect the economy?

  39. Mike January 11, 2010 12:19 pm

    Reverse engineering can and does happen. Why does the google phone look so much like the iPhone. They replicated the look and feel as closely as possible as long as they didn’t copy any patented hardware or software (both of which are required to achieve function).

    In order to prevent bad software patents an annotated, indexed database of software is required. For the same reasons POP described, the software is compiled to run, it is very easy to design software that accomplishes the same functions without using the same, exact code. That is why copyright is worthless for protecting software function from reverse engineering. It is also why it is easy to design around many software patents.

  40. Gene Quinn January 11, 2010 1:00 pm

    POP-

    I think we are on the same page (largely). I am going to post something later on this week (hopefully) that will describe exactly why patents foster innovation. Our discussions have helped me understand a lot. I think there is a disconnect (although not necessarily between you and I) between how most software folks and patent attorneys use the term “innovation.” I also think that software folks and others who claim that patents do not promote innovation understand more about patents than I thought (perhaps). But what they lament in terms of the patent laws is exactly what the patent laws are supposed to do. The patent law is supposed to promote leaps and act as a roadblock, albeit a fragile roadblock.

    More to come. I am way overdue on a reexamination article, which I am working on presently.

    By the way, I would still LOVE for you to write something someday for IPWatchdog.com. We should discuss that when you get a chance. Shoot me an e-mail. http://www.ipwatchdog.com/about/gene/#F

    -Gene

  41. pop January 11, 2010 2:16 pm

    -Mike

    Why do you think Google must have reverse engineered the iphone in order to replicate the functionality and feel? Or were those two sentences not supposed to be connected?

  42. step back January 11, 2010 4:29 pm

    POP and Gene,

    These are interesting discussions.

    In one sense they are a rehash of the old debates about whether the USA should have a patent system in the first place.

    On the other hand, there are new terminologies and definitions being applied here.

    For example, the patent abolitionists use the term “innovation” instead of “invention”.
    What are the differences between “innovation”, “invention” and “promoting progress in the useful arts”? I’m not clear on that.

    The patent abolitionists also seem to use the terms, “software” and “algorithm” in some special ways, as well as the term “software patent”.

    From what I can make out of their position, they construe the term “software” to mean a purely mathematical thing and they construe “software patent” to mean a government document that gives the owner the right to monopolize a purely mathematical process, in other words, the thing they call an “algorithm”.

    Does that seem to be a fair assessment of their position?

  43. Mike January 11, 2010 5:28 pm

    POP,

    iPhone revolutionized the way phones were used, looked at and developed. Had google created their phone in a vacuum, they would not have used a touch screen with apps. It wasn’t even contemplated 5 years ago. Thus they took the iPhone design and created a hardware and software that replicated, and improved that type of phone. Thus reverse engineered at least some aspects of the iPhone to get google phone.

    I don’t like apple, can’t stand iTunes, don’t want to pay for an iPhone. I’ll get a better phone when prices drop because of competition. Competition still happens even in the face of patents.

    Step back,
    By defining software as a mathematical algorithm absent any function, abolitionists feel their definition skirts the realm of patents (no patents to laws of nature, a purely mathematical formula would be a law of nature).

    Unfortunately software is the cogs and motors for hardware. The combination of software and hardware accomplishes functional work. It is not simply a mathematical formula, it is a tool to accomplish a specific an engineered function and therefore patentable.

    Have a great evening,

    Mike

  44. step back January 11, 2010 6:10 pm

    Mike,

    I’m on the same page with you in viewing “software” as something real and physical that is installed into a computer by use of real and physical signals.

    The average person’s idea of what “software” is cannot be an abstract mathematical purity that lives in an abstract world of its own. Mother Nature does not divide as between functionalities that are realized via hardware and those that are realized via software or mixtures of the two. When an average person loads software into his machine, he (or she) is loading in something real that consumes time and energy, not an abstraction that wisps in with the wave of the sorcerer’s wand.

    I was just giving my understanding of what the other side seems to be professing. To me it seems like they have special Chesire Cat definitions for everything they say.

  45. pop January 11, 2010 6:48 pm

    -Mike

    Do you have any idea what reverse engineering is? I realize there are many definitions for reverse engineering, but I am talking about using disassemblers and decompilers to extract code readable code from machine binaries. I doubt that they did this, or that they physically took an iphone apart, although I suppose they could have, but they certainly didn’t have to.

    If they had emulated the hardware or copied the circuit design, then that would qualify as reverse engineering to me, but they didn’t. Apple didn’t revolutionize a lot with the iphone other than putting a lot of technologies together in such a small device for the first time.

    You can say they knocked it off or copied it in the sense that I outlined before, but in the software world, what is usually defined to be reverse engineering I am sure they did not.

    -Step Back

    When I think about these issues I usually think about physics. Most people are usually pretty good at kinetic physics in their everyday life, they just don’t know they are doing it. People just develop a good sense of motion. Basketball players know how hard and at what angle to throw a ball to land it in the basket without doing a lot of calculations first. The math involved to figure out those quantities is available but it is merely a symbolic representation of something that exits already.

    Obviously it is silly to give somebody a monopoly on describing motion, but how about a method for predicting motion? My personal feeling is no, but a process for doing so is still a process. I actually like the machine or transformation test because it would exclude, as far as I know, that sort of thing, assuming it wouldn’t be exempt anyways under the bit about laws of nature. A process that involves a machine or transforms some thing into another thing, like bits into sound, or one chemical into another that uses a kinematic equation, should. Gene has pointed out the example of the rubber curing many times.

    The processes I have a hard time seeing patented are those which are purely logistical, so to speak. The sorts of processes that don’t do anything inherently useful except facilitate other processes that do, which is what a lot of software processes are, just scaffolding to set up the processes that actually help you in the real world.

    I’m sure I’ll have tomatoes thrown at me for butchering the law in some way or other, but that is how I feel about it.

  46. step back January 11, 2010 9:41 pm

    POP,

    There is a saying in the legal profession that bad cases lead to the making of bad law.

    Bilski is one of those “bad cases”.
    There is no computer in the Bilski patent application.
    There is no software in the Bilski patent application.

    Bilski’s claim number 1 can be summed up as the following:
    a) gather some information
    b) do some calculations with the gathered information
    c) based on the calculations, initiate a first set of transactions with a first identified subset of people; and
    d) based on the calculations, initiate a second set of counter-hedging transactions with a second identified subset of people.

    Bilski’s claim number 1 does not at all prevent people from doing a) and/or b).

    It is only when you do all of a) through d) that you would potentially infringe Bilski’s claim 1.

    There is no way to initiate transactions with real physical people without doing something real and physical. Thus the Universe is transformed from a first state in which the transactions were not initiated into a different state where the transactions were initiated. Bilski satisfies the transform prong of Bilski and yet the CAFC says no it does not.

    People who don’t want to give Bilski a patent no matter what say: ignore the initiating steps, those don’t count.

    My beef with that position is that it is arbitrary, capricious and not in accordance with previous law. Anybody can cherry pick any subset of lines in a claim and say, oh just ignore those. In fact, the CAFC Bilski panel went through great gyrations to pretend they were not doing what I just said, namely, using an arbitrary and capricious basis to ignore and cherry pick among the parts of the Bilski claim. The black letter law requires the claim to be considered in whole. The black letter law says it is the applicant who decides what subject matter he regards as the invention. The CAFC panel ignored those solid axioms of patent law and made up a random and ambiguous new set of rules that come essentially out of nowhere (out of left field) and cause great damage to the practice of patent law.

    People who don’t follow the details quickly jump to the assumption that Bilski is about “software patents” (whatever those are). It is not. There is no software mentioned in the Bilski patent submission.

  47. Gene Quinn January 11, 2010 9:42 pm

    Step-

    I think you are definitely on to something here. It seems to me that the abolitionists (as you call them, and that seems largely like a good way to refer to them) want to focus on the object code and say that since the source code has been compiled into binary then the software that runs the machine is purely mathematical. What they are doing is focusing on the translation from source code to machine code and noticing that the translation is a mathematical process, so that means that the entirety of the software must be math. Obviously, that is a convenient and self-serving way to justify their position, although I haven’t heard any of them make the argument so concisely or precisely. That, however, is what they are saying. I am convinced of it. Of course, focusing on one aspect and then refusing to ignore what the software does (i.e., provide instructions) is intellectually dishonest. It is as if they want to focus on the horizon and say “see, the world really is flat, just look for yourself.”

    Definitions are critical in this debate, and the abolitionists want to act like there are concrete meanings that are definite, which is particularly odd when what they cite as proof of a definition explains that there are no truly accepted definitions. This makes me believe that they don’t actually read completely, if at all, what they think supports them. Perhaps it is better to say they stop reading once they have the statement they want and ignore the rest, which frequently contradicts the main point they are making.

    In my view, an algorithm is not a software program. Despite the term being used to mean many things I think it is exceptionally safe to say that no one says that an algorithm is made up of internal software programs, but the reverse is certainly said. Software programs are comprised of numerous algorithms. As in the Wiki definition of “algorithm” an illustrative algorithm is said to be a process for determining the least common factor for two integers. That is hardly a software program by any real or popular understanding of what constitutes a software program. Having said that, a software program undoubtedly contains numerous of these minor algorithms.

    Another problem the abolitionists have is that they want to pretend that when one gets a software patent that others cannot use some undefined, nebulous math. That is incorrect, obviously. They also don’t seem to understand what a software patent covers, which is an overarching process. They also seem to think the copyrights provide adequate protection. I notice that no one, expect POP, has answered whether they would believe someone who creates a software program that is identical in every respect has made a copy if they it works the same but does not use identical source code. There are a million ways to write code, and they like to think copyright is all they need, but we know better. Copyrights don’t prevent copies, they prevent cutting and pasting.

    I think there is also difficulty with the terms innovation versus invention. They talk about innovation in terms of what copyright law would call independent creation. They don’t like that I observed, and I believe rightly so, that those who are against software patents are not innovators and are pro-copying. They think that if they independently create, even if they are second, that is an innovation. It is not an innovation, of course, but rather a re-invention. Doing something that has already been done previously is certainly not an invention and it is not an innovation either.

    By the way and for the record, I don’t think POP should be painted with the abolitionists brush. While he disagrees he engages and seems to have logical and internally consistent positions, although they don’t always coincide with a pro-patent view.

    -Gene

  48. step back January 11, 2010 11:51 pm

    Gene,

    With due respect, I think you are opening up a whole new Pandora’s box here.

    No. I don’t see the abolitionists as saying that.

    I see them as saying that all “software” is nothing more than an ordered collection of abstract symbols living in a totally abstract world and wholly divorced from the physical world. If I understand them correctly, these ordered symbol sets can be transformed into some sort of lambda calculus expression and that is pure math.

    It makes no difference to them if something is called “object” code or “source” code or “meta” code. Symbols are symbols. It’s all abstract symbolism to them.

    The physical computer machine need not exist and in fact they are quite happy believing in the mythical and physically impossible “Turing” machine. Their abstract symbolism can execute on an abstract Turing machine just as acceptably as on any other “general purpose” machine.

    So no, I don’t think it has anything to do with “translating” one form of “code” into another (and use of the word, translating is itself problematic). The symbols and/or their manipulation are both math –according to the patent abolitionists.

    Maybe it’s time to open a new thread on this issue?
    After all, what’s Bilski got to do with it, got to do with it?

  49. EL January 12, 2010 12:01 am

    “So if you write a program I can recreate the software program exactly and there is absolutely nothing you could do to stop me”

    Since software is fully protected by copyright law, I could enforce my copyright upon you in court, and they would stop you. Much like a paraphrase, you can not rename a variable or two and expect to avoid infringement. If I write a program in C++, and you copy it and write it in java, you would still be found to infringe my copyrights. If you copied just one function out of my software and used it in another completely different piece of software, you would still be infringing my copyrights. If you took my program and added to it, I could still sue you for copyright infringement. Unlike other forms of engineering, software is completely and totally protected by copyright law.

    Although you could not copy my software program, you could still use my idea. If my software was a web browser, you could write your own web browser and I could not do anything to stop you. Your program could of course be better or worse then my own.

    In the case of software patents, the abstract is being protected. Let me give you an example, in web page design, there are several patents for displaying a popup window. A simple browser.open() command is enough to get you sued for patent infringement. Even if the patent holder is unlikely to win in court, the cost of defending would be in the millions. Middle sized business, small businesses, and open source are unable to front the costs of defending a patent suit. In fact, many large businesses settle outside of court even if they believe they can win because the costs are so high. There are tens of thousands of cases of abstract patents. In fact, there are so many cases that companies can not even make the determination on what infringes. This uncertainty can be seen by the frequency of litigation in the software industry. I recently listened to a lecture by a patent lawyer who works for a firm that defends software companies. The lawyer explained that she received a notice for patent infringement every 10 days for her list of clients (not the firms).

    Software has extremely high litigation, and all software companies agree that it’s a problem. The disagreement in the software industry is what to do about it. Some believe patents should be narrowed down in scope and power while others believe that software patents should be just thrown out entirely. Reform efforts have been tried many times, and they have always failed because of other industries (namely biotech).

    Personally, I think patent law needs to be restricted outside the scope of software patents. Software is just too overly protected by IP.

  50. Blind Dogma January 12, 2010 6:01 am

    dam, another drop in sales of my Kool-aid. How can I compete with the clear logic?

    You guys are out to ruin me, I just know it.

    Oh wait, El just bought a glass. As my pal Barnum notes, here’s another one being born in this 60 second timeframe.

  51. Gene Quinn January 12, 2010 11:06 am

    EL-

    Your misconceptions about copyrights are voluminous. You say:

    “Since software is fully protected by copyright law, I could enforce my copyright upon you in court, and they would stop you. Much like a paraphrase, you can not rename a variable or two and expect to avoid infringement. If I write a program in C++, and you copy it and write it in java, you would still be found to infringe my copyrights. If you copied just one function out of my software and used it in another completely different piece of software, you would still be infringing my copyrights.”

    That is simply not true. I could copy ALL of the function of your software and still not be infringing your copyrights.

    Folks… you can choose to believe copyrights provide all the protection you need, but that is simply not true. Copyrights protect expression, not function. That is black-letter copyright law. In fact, if something has a function it cannot be copyrighted. The easiest example is a costume. Since a costume is an article of clothing and clothing has the function of covering the body a costume cannot be copyrighted.

    When you obtain a copyright on software you are protecting the code. I can write code that does the identical thing and not be infringing your copyright.

    Believe what you want, but if anyone believes copyrights provide adequate protection they are building a house of cards that will quite easily come tumbling down, and then it will be too late to do anything but accept you allowed your competition to succeed due to your own hatred of patents.

    -Gene

  52. Gene Quinn January 12, 2010 11:09 am

    EL-

    One more thing… You also say:

    “A simple browser.open() command is enough to get you sued for patent infringement.”

    Please provide a single example to support this claim. I know you won’t be able to, because it is not true. This is the exact type of uninformed chicken little approach that causes otherwise intelligent people to con themselves into believing things that are incorrect but coincide with their world view. A single command is not enough to get anyone sued for patent infringement and there has never been a case of that happening ever.

    Can we please at least try and keep things real and factual?

    -Gene

  53. Gene Quinn January 12, 2010 11:14 am

    Step-

    I love your ending to the comment! I never thought of you as a Tina Turner fan… lol.

    You are spot on, with the opening of a new thread. At some point later this week I will do just that, and get back to this can of worms for sure. Without even trying to step into it with my prayers for Bilski I opened up controversy. Imagine the controversy I will open when I am trying to step into it!

    Perhaps you are correct. Maybe I was giving the abolitionists too much credit, because what I put forth was a least a plausibly logical argument. The if symbols are symbols and it is all abstract to them then they need more help than I previously thought.

    -Gene

  54. Mike January 12, 2010 12:15 pm

    Literal reverse engineering is “obtain product, dismantle product, determine function, rebuild product, produce product.” That is the very espionage type reverse engineering that has and still does occur.

    I don’t know how much of Google’s phone came from actual reverse engineering in the strictest definition. I do know, from the look and feel of the Google phone, that it was not developed in a vacuum. To some extent Google looked at the iPhone and said, “What does the iPhone offer?” “Can we do that?” “What can we add to it?” “Are we going to be able to sell it?”

    When Google designed the iPhone they did not develop the initial look and feel de novo, as Apple had done, or maybe they copied off of the ATM, grocery keypad, GPS systems, etc. Google designed the look and feel based on the iPhone design. They had an iPhone at some point, looked at what it did and designed a product that did exactly the same thing. Did they use spreading two fingers to make the screen zoom in? They may be infrining a patent, if/when it issues. Did they put a GPS in? They may infringe a patent. Did they use certain types APPS? They may infringe a patent. They may have also developed their own technology, made the phone recognize shapes, words, and land marks. Maybe they’ll get a patent.

    When someone sees a function they like, on a computer, on a phone, on a radio, etc… If they think it’s neat, adds value, and is sellable, they may want to add it to their device. They go back to their engineers and say, “Make this product edit XML.” Make it do this, that and the other because it works great. I just saw someone else do it and we can copy it cheaper than we can buy it from them. We may even be able to write the code better, or outsource the code so that it takes up twice as much space as it needs to, maybe even make it so cheap that it never closes out any subroutines and takes up half the hard drive.

    That may not be direct “reverse engineering” but it is copying someone else’s idea and using their solutions. It is reverse engineering in that they are engineering the same solution based on someone elses work. I believe it is the same as seeing something great, a lighter bike frame design, a new medicine, a company name or motto, etc. and copying it. I coin the term, “copy engineering” (TM) and define it as seeing something cool and engineering a copy that does the same thing the same way. That is not innovation, it is not new and novel, it is not patent worthy, and it is infringement.

    Bilski on the other hand is the opposite. A patent owner made their patent so vague and disconnected from reality that the claims literally read on a brain-fart. I make an offer to one guy, then make an offer to another guy based on the offer I made to the first guy. I did that the last time I sold a car. The attorney didn’t want any physical connections to limit the claim and the Mr Bilski probably thinks he’ll get to sue every Charles Schwabb, Ameritrade, eTrade, etc. I’ll bet he’s already made retirement plans based on his legal winnings. Not exactly the people, attorneys or businessmen, you want representing all software. Software for everything from tissue imaging and statistical analysis to the latest apps rides on this case. The USPTO is going to apply the Supreme Court ruling like a sledge hammer if Bilski doesn’t get to keep all of his claims. Additionally, if I remember correctly, Bilski doesn’t have a lot of fall-back claims.

    Finally, software is nowhere near protected fully by copyright claims. Copyright does not protect the function, it only protects the software disk. The media with code language is protected from direct copying thus the owner controls the right to dictate who can or cannot copy the software disk. If I write independent code, without copying, that does the exact same thing as the protected software, I have not copied the product and have not infringed the copyright. If I use a trademarked term like MICROSOFT(R) in the product and I am not working for MICROSOFT(R) then I have committed trademark infringement. If my software performs the same function in the same way, I will have only committed patent infringement not copyright infringement.

  55. step back January 12, 2010 2:09 pm

    Gene–

    101 is just a second hand emotion. 🙂

  56. EL January 12, 2010 2:23 pm

    “Copyrights protect expression, not function.”

    In software, these two terms are equivalent. Expression is a function in software.

    “I can write code that does the identical thing and not be infringing your copyright.”

    Will the software be identical? No. In order to avoid infringing, you would have to change the expression and thus the function. Your function may perform the same task as mine, but it accomplished the task in a different way and in a different amount of time.

    “anything but accept you allowed your competition to succeed due to your own hatred of patents”

    I do not hate patents, and I think they are needed in most industries, but I don’t believe they are needed in software.

    “A single command is not enough to get anyone sued for patent infringement and there has never been a case of that happening ever.”

    http://www.msnbc.msn.com/id/3078633/

    In addition, Microsoft has a patent application out on the IsNot operator. So I would be careful if you develop in a language with the operator.

    If X IsNot Y then sue me.

  57. Gene Quinn January 12, 2010 2:28 pm

    To All…

    The comments from EL above are 100% wrong on the law. You can choose to believe him if you like, but buying into his erroneous understanding of copyright law and software will lead to catastrophic business decisions.

    Copyrights protect expression, not function. If you create a software program and it is only protected via copyright then I can create the same exact program and there is nothing you can do to stop me unless I copy your code. We all know there are thousands (at least) of different ways to write code to accomplish the same task. Copyrights simply do not protect you.

    EL’s comments seem to suggest that software written differently cannot have the same function. Anyone with any programming experience knows or should know that to be false.

    -Gene

  58. step back January 12, 2010 2:36 pm

    Gene,

    On a more serious note, it should observed that there is no such thing as a “general purpose” transportation vehicle.

    There are cars, planes, trains and boats (and motorcycles and space shuttles).

    In the class of “cars” (as I choose to use the term ha ha), there are big trucks, little trucks, SUVs, Priuses, etc. etc. Each one has a unique architecture. To make efficient use of the specific machine, you need to have a knowledge base of its specific components and their strengths and weaknesses. Example, yes the emergency brake will slow your car down, but if you need to stop really fast, the main brakes are recommended.

    By the same token, there is no such thing as a “general purpose” computer.

    There are main frames, super computers, personal computers, smart phones, etc.

    In each class there are many possible architectures. To make efficient use of the specific machine, you need to have a knowledge base of its specific components and their strengths and weaknesses. Example, yes the backup tape can be used to store data, but if you need fast repeat access to the same data, maybe you should instead store it in an on-chip cache memory location.

    With that in mind, it should be observed that the notion of “translating” source code into object code is a nonsensical one. What you are instead doing (when compiling a higher level language) is melding a pre-established knowledge base about the specific architecture and workings of a specific machine with the operations you indicated in your source code. A good compiler will figure out how to efficiently use the resources of the specific machine it is targeting based on its melding of your source code with its built in knowledge base (eg libraries) regarding how the target machine is specifically put together (eg, so many bytes of SRAM, so many of on chip registers, etc.).

    The word “translating” is a convenient one for giving lay persons a rough idea of what is going on when a computer geek says he is compiling his code. But at the same time, it is often a misleading word. If the lay person takes it literally and comes to the conclusion that they now know how computers work, it becomes just another example of how a little knowledge can make one dangerous.

    Same thing with patent law.
    Lawyers often “translate” what a specific legal issue (.e.g., Bilski) means into words they think the lay computer engineer will understand. At that point the lay computer engineer becomes dangerous because he/she thinks they understand when in fact they don’t.

    It’s a complicated world after all.
    But hey, don’t blame me.
    I didn’t start the fire.
    It’s been burning ever since the world started churnin. 😉

  59. EL January 12, 2010 2:48 pm

    “I can create the same exact program”

    Let me explain this in another way.

    Lets create a hypothetical function:

    Function DoSomething
    // step one
    // step two
    // step three
    // step four
    // step five
    // step six
    // step seven
    end of function->Return some awesome output.

    Programming on a computer is structured. In most algorithms, you cannot move step 7 into step 1 because it would produce errors. Things have to be done a certain way in programming.

    If you copy the DoSomething expression, I can sue you for copyright violation; instead, you have to do something different…….

    Function DifferentDoSomething
    // Step one
    // Step two
    // Step three
    End of Function->Return the same awesome result as DoSomething

    Although these two functions produce the same output, they arrive at the output by different means. In this example, the DifferentDoSomething function would be a better function because it performs the tasks in less amount of time.

    What you are wanting to argue is that you can achieve the same outputs without violating copyright. But the programs will be fundamentally different internally, and the user will see different style screens.

  60. breadcrumbs January 12, 2010 2:59 pm

    Careful El, with a comment like

    ‘In software, these two terms are equivalent. Expression is a function in software.”

    you will lose even your copyright protection, since (as Gene correctly states) function cannot be copyrighted.

    In fact, if your code boils down to the only way to do something, that code CANNOT be copyrighted. In that case, if you throw away patents, you have thrown away ALL IP protection.

    It is really scary (but not surprising) to see so many people try to talk about something they do not know about.

    Remember: Feet in both worlds people!

  61. EL January 12, 2010 3:05 pm

    “The word “translating” is a convenient one for giving lay persons a rough idea of what is going on when a computer geek says he is compiling his code.”

    Translate is a good choice of words because that is exactly what is taking place. The language gets translated into a different language by the compiler. Even assembly language gets translated, but the mapping is one to one with opcode.

    In C++ code,

    x=10;

    would spark the following translation by the compiler:

    mov eax, 10 ;Move 10 into the register EAX
    mov x, eax ;Move the contents of EAX into the memory location pointed to by x

    The translation would be in op-codes instead of assembly language. The difference between assembly code and op-code is that op-code is entirely numeric. If you open up a exe file in a hex editor, you see the actual op-codes.

    On a off topic note:
    I always found one thing interesting about computers. Computers cannot tell the difference between code and data; instead, the programmer (or at least the compiler) has the responsibility to keep them separated.

  62. Mike January 12, 2010 3:22 pm

    “you can achieve the same outputs without violating copyright. But the programs will be fundamentally different internally, and the user will see different style screens.”

    EL, your logic seems to be inverted. The code:
    // Step one
    // Step two
    // Step three

    Will not infringe a copyright to :
    // step one
    // step two
    // step three
    // step four
    // step five
    // step six
    // step seven

    because it doesn’t have the same text.

    The steps you talk about are patent language because a copyright would only copy the language used to convey each step, not the step itself. Copyright protects “TEXT ONLY.”

    Patents are issued to a variety of machines, software or hardware, for good reason. It is the only way to protect the function.

    “The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. ”
    “There are times when you may desire a combination of copyright, patent and trademark protection for your work. You should consult an attorney to determine what forms of intellectual property protection are best suited to your needs.”
    http://www.uspto.gov/ip/global/copyrights/basics.jsp

    You may say a law doesn’t matter, that does not make it so. You can be sued for infringement even if you don’t like patent law and you can lose patent protection for any invention disclosed and/or publicly sold >1yr before patent filing (US) or any public disclosure (EP). It’s your perogative to make intellectual property decisions without consulting an attorney.

    Just an old note on copyright and patents before the USPTO hearings:
    http://www.uspto.gov/web/offices/com/hearings/software/sanjose/sj_siber.html

  63. EL January 12, 2010 3:49 pm

    63. “you will lose even your copyright protection, since (as Gene correctly states) function cannot be copyrighted.”

    What is your definition of Function? Are you talking the hardware or software level?

    In software, the expression of a function is copyrightable. As such, you can not create the exact function in software without violating the copyrights of the expression. Software by itself does not do anything; instead it requires hardware to perform the tasks. Software is simply instructions for the hardware. So if you cannot copy the expression, you cannot make an exact duplicate of the function. The function will have to be different in some way in order for you to avoid copyright infringement. The function may produce the same output, but the function will be different in its construction, performance, security, maintainability, and/or bugs.

    You could modify the hardware so that users have to punch buttons instead of the automated method of having the instructions stored in memory or hard drive. They could punch the op-codes in directly to the computer, and the computer would perform the task with each step being punched in the keypad. In this case, the software could be distributed as a book that the user can read, and the user could follow the recopies in the book to configure the hardware (IE: run the software).

    Copyright in software works in the same identical way as it does for literature. Instead of a story, you are getting functions (or a recipe of steps). You may like the harry potter book, and you may even write your own story about a boy wizard fighting some dark evil wizard. But if you get to close to harry potter, you will get a copyright infringement letter. If you honestly think copyright is so easy to get around, you could make quite a fortune by writing harry potter books and other copies of great works. But I wouldn’t advise the attempt.

  64. Gene Quinn January 12, 2010 3:58 pm

    EL-

    Your understanding of copyright law is seriously flawed.

    You are correct when you say that software provides instructions, but wrong when you jump to the erroneous conclusion that this means you protect functions with software copyrights. What you prevent is another person from stealing your expression, which means they cannot copy your source code. But if they write their own source code without copying you, even if it is identical to your code, there is no infringement. To prove copyright infringement you have to prove copying. Independent creation is a defense to copyright infringement, even if the resulting expression is identical.

    If you write a program and look at how it operates and say that I want to accomplish the same thing, and come up with the identical software program there is nothing you can do with your copyright to stop me unless you can prove that I copied your source code. If I independently created the source code your copyrights cannot stop me.

    This is why copyrights are inadequate protection for software. You have to stop listening to those who say copyrights are adequate protection and start learning copyright law. It seems you are operating under numerous incorrect assumptions that are leading you astray.

    -Gene

  65. EL January 12, 2010 4:17 pm

    “If I independently created the source code your copyrights cannot stop me.”

    Independent creation is a valid defense for copyright infringement; however, you would have a very hard time convincing a judge that your 100,000 lines of code was independently created and just happen to be identical. It would be the same as going before a judge and explain the “Harry Potter in the Half Blood Prince” and the entire story line just came to you in a dream.

    If a software product was truly independently created, it is going to be different. The software may solve the same problems, but it will have its own strengths and weaknesses.

    #65 – “Copyright protects “TEXT ONLY.””

    Software is text only.

    “Just an old note on copyright and patents before the USPTO hearings:”

    Yea I would take the word of a company who is highly invested in software patents (they have more then anyone) instead of the word of highly respected computer scientists like Donald Knuth.

    Here is his old note:
    http://progfree.org/Patents/knuth-to-pto.txt

  66. Gene Quinn January 12, 2010 5:18 pm

    EL-

    You are correct, the more that is taken the less likely independent creation will be a valid defense.

    Where your understanding breaks down is with respect to what is being copied. You say that if it is truly independently created it will be different, and that is not true. With intellectual property rights the prohibition against copying is not absolute. You have to ask what is being protected and then you cannot take what is being protected, while you can take anything else. Lets say I like Turbo Tax. If they do not have a patent on their software/process then I can recreate Turbo Tax exactly in every regard so long as I do not copy the source code. So I can set out and purposefully create an exact replica of Turbo Tax and not infringe any copyright they have. All I have to do is independently write the source code that provides the same exact functionality and does exactly the same thing.

    -Gene

  67. Mike January 12, 2010 5:28 pm

    EL,

    Your dislike of patents makes you downplay the work you do. You appear to be intimately familiar with programming and the language of code. You understand work that you accomplish on various electronic devices from phones to supercomputers and everything in-between. As we progress programs are going to accomplish more than physical inventions (wheel, brush, etc). Yet you don’t want to think about how the best way to protect your NOVEL innovations from copiers. Instead you insist that software should be free and no one should ever own it. It is a fundamental difference of opinion.

    I know software can be used to accomplish a variety of tasks. As I think of new ways to solve problems, I would like to protect those valuable innovations from copying. I work with signals, imaging and the like, these images provide valuable information and improving those images costs money. I am paid to protect those improvements. Patents are the best way to protect them.

    It is ironic in this age when everyone is going to be developing APPS, you want to throw away protection for those new and useful tools in lieu of protecting the TEXT ONLY part of the program.

    I wish you the best,

    Mike

  68. EL January 12, 2010 6:20 pm

    “So I can set out and purposefully create an exact replica of Turbo Tax and not infringe any copyright they have.”

    The difficulties of creating replicas in software are higher then you may suspect. Could you set out to create a replica of harry potter, lord of the rings, or wheel of time? How about music and other works of copyright protected content? I don’ think you fully appreciate the complexity and creativity involved in software development. Whatever you created, it would have strengths and weaknesses against turbo tax. Turbo Tax may have a less confusing layout, higher performance, less bugs, or the other way around.

    Could you set out to create a replica of Google? You would end up with something different like a Yahoo, Altavista, excite, or other examples. Your engine would allow users to search, and it would retrieve results. But could you retrieve the same results as Google? Would it be as fast?

    In addition to all of this, I think it’s well to remember the purpose and intent of the patent system. The patent system was designed to protect industries which had high investment. Without patents, some industries would have never came into existence. The real fundamental question to ask about software patents is the following: Is software development dependent upon patents? I think open source has clearly answered the question. In addition, most software patents are not even owned by software companies. You could not say the same about computer hardware patents. The computer hardware industry would have died long ago without patents.

  69. step back January 12, 2010 7:05 pm

    @EL #64

    “On a off topic note: … Computers cannot tell the difference between code and data; instead, the programmer (or at least the compiler) has the responsibility to keep them separated.”

    EL,

    Well at least you are to be applauded for having an interest in the “hardware” part of the machinery. However your understanding here is also limited. The hardware designer gets to choose whether the machinery can confuse opcode with operands or not. For example, the program counter might be restricted to memory spaces where only op-codes are stored. But as I said, you are to be applauded for having an interest in the “hardware” part. One gets a feeling that many programmers believe their code lives in a separate and apart world. Mother Nature does not operate that way. Code and machinery are inseparable parts of an operational whole.

  70. blind dogma January 12, 2010 8:07 pm

    “In addition to all of this, I think it’s well to remember the purpose and intent of the patent system. The patent system was designed to protect industries which had high investment”

    Ah yes, El, drink another cup. Yep, it says that exactly in the Constitution. You don’t have to look, take my word for it.

    “Software is text only.” Wait, now I’m confused, wasn’t software function only? So let me get this straight, sotware = expression = function = text. I got it! You are one of those everything = everything people. No wonder my letters jump on the keyboard of their own volition and type just whatever they want to type. They are text expressing functions!

    So what part of the rule of copyright outlawing function impacts text/expression/software?

    another cup, heck another pitcher for my customer El!

  71. blind dogma January 12, 2010 8:09 pm

    step back, stay away from El – he’s mine and your impeccable logic willl never reach him.

  72. step back January 12, 2010 9:02 pm

    BD,

    That’s not nice. It’s rude.
    EL is trying to reach out and understand.
    He even appears ready to get down and dirty with us in the bowels of the machine.
    Next we’ll be talking sequential state machines. Who knows? Anything is possible.

  73. EL January 12, 2010 9:05 pm

    “For example, the program counter might be restricted to memory spaces where only op-codes are stored ”

    The same could be accomplished through the operating system of the computer. The local variables that are normally inline would need to be relocated to a designated dynamic allocation area instead of being placed inline with the code. In both cases, a programmer could access the memory below the opcode line and corrupt it through API. In addition, the method is not as efficiency as inline.

    “other Nature does not operate that way. Code and machinery are inseparable parts of an operational whole”

    Code does not exist on the physical domain at all. At one time, there existed machines that read punched cards and performed a operation depending upon the configuration of the holes in the card. Do you beleive the configuration of the card deserves patent protection?

    “One gets a feeling that many programmers believe their code lives in a separate and apart world.”

    I’m not a programmer; instead, I study mathematics.

    “Instead you insist that software should be free and no one should ever own it. It is a fundamental difference of opinion.”

    I never made any comment that software should be free.

    70. “It is ironic in this age when everyone is going to be developing APPS, you want to throw away protection for those new and useful tools in lieu of protecting the TEXT ONLY part of the program.”

    Two things then I’m going to bed…
    1. The entire program is comprised of text. The code, the data, and even the images.
    2. In the rush to protect and monopolize everything, I think you are not considering the consequences. Science and mathematics are going to be heavily assisted by computers before long. Do you think these areas should be locked down into patents? I’ve noticed that the United States is embarking on a mission to prevent climate change. Did you realize that plenty of the literature in global warming has not been reproduced by independent sources due to the patents placed upon these models? So now we are just going to trust that the models are correct in good faith instead of independent reproduction that the scientific process demands. In addition, we are going to make changes to our economy that are very dangerous based upon models that are also going to be taken on good faith. These models may very well be correct, but they haven’t been tested to scientific standards to do IP. This problem is only going to grow worse as science and mathematics meets patent lawyer land.

  74. blind dogma January 12, 2010 11:11 pm

    step,

    no less rude than pontificating on things that one knows absolutely nothing about. One has a right to be ignorant, but please keep it to oneself.

    He’s mine I tell ya – EL, pour yourself another drink.

  75. step back January 12, 2010 11:37 pm

    @comment #76 :

    “Code does not exist on the physical domain at all.”

    Gene,

    Need I say more? There you have it. Like I told you. That’s they way they view things.

  76. Mike January 13, 2010 9:09 am

    Re: Comment #71
    “The real fundamental question to ask about software patents is the following: Is software development dependent upon patents? I think open source has clearly answered the question.”

    Open source is one choice to distribute the work of many. Open source exists to create free options for public programming. The open source code movement and people participating in open source are free to donate their time and skills to distributing various programs. Novel ideas that are distributed by this route should never be patented, assuming the inventor does not wish to patent them. That is a choice for those programmers.

    Some make a choice to donate to charities as well, that is there choice. Everyone should not be forced to donate to charity simply because some choose to donate.

    If the routines and solutions developed in open source were available in a public database with a documented date of public access it could be used as prior art preventing other developers from patenting the same or similar programs. Currently I know of no good, indexed database of software routines that has a reliable date of “publication.” This means that it is difficult to document when one routine was available to the public vs those available in a patent application. Perhaps if the public source community were to develop a system of indexing (with dates) the availability of routines from both the public domain and patent domain it would help prevent crappy patents from being issued and let the programming community know which routines were protected by patents and may require a license.

    There is a continuing insistance that a copyright protects the software from copying. Here is a breakdown of why copyright only works to prevent direct cut and paste copying. You may write code in C++ and obtain copyright protection. That copyright protection is good for the C++ code that instructs the computer in machine language to perform a specific set of routines in an exact order. If I see that program work and it accomplishes a task that is new and novel then I will want to copy it so that I can get your clients to purchase my software instead as I am your direct competitor. I research your company and IP rights you have for your software. Since you have a copyright to the C++ code but have no patent protection I know that I can imitate the software as long as I don’t copy the C++ code directly. I tell my software engineer to write a program that does what your program does (Step 1, step 2, step 3,…). When he writes the code, the physical text to perform the same exact steps is only 80% similar because he has different MEMO lines, calls the variables by different names and uses offset scales to change the numbers (computer counts from 199 to 100 instead of 99 to 0). I present this to my IP attorney and he says, “There are cases where people with 80% similarity have or have not been found guilty of infringing the copyright.” I can go forward with this software and feel confident that you probably won’t bring and infringement suit against my small software company.

    Alternatively, if my company name is “MICROSOFT(R)” and I know you will sue because there is a history, I may need to erase all possible avenues for your lawsuit. In this case I would have my software engineer write the same routines in FORTRAN, PEARL, or JAVASCRIPT. Now my software code is only 10% similar to the text of your C++ software. There is zero chance you would win a copyright infringement because even with using the same variables, the memos are different and it was clearly not copied from your C++ code. Only the subroutines were copied, the logic that went behind what the program accomplishes.

    If you had a small startup company and wanted to develop software (the next latest, greatest program). You would either need to be independently wealthy or get investors. Assuming your investors want their money back, you would need protection. With just a copyright on your software you will stop people on the corner from selling $10 disks containing your $100 program. MICROSOFT(R) still has the ability to come back and imitate your software. MICROSOFT(R) can have their software engineers program that function into their WORD(R) software and not copy your original software. Copyright will not protect you. You may contact i4i to understand how the company Microsoft works, to see how they stole i4i’s software then left them out in the cold. Business is not nice, the software business is ruthless, without patent protection Microsoft will eat your lunch as soon as you show them where the bacon is.

  77. EL January 13, 2010 10:56 am

    78 – Is mathematics on the physical domain?

    You can write mathematics down on a piece of paper just like software. Mathematics is just a series of steps written down, and the symbolism can be translated into programming. So is mathematics physical?

    You people are taking a subject that philosophers have argued about for 2,000 years, and you are stating it with certainty. Most mathematicians and physicist do not consider mathematics to be on the physical domain.

    79 – “Everyone should not be forced to donate to charity simply because some choose to donate.”

    You seem to agree that software development would continue without patents. But you also say we should still support the granting of monopolies for the sake of monopolies.

    “If you had a small startup company and wanted to develop software (the next latest, greatest program). You would either need to be independently wealthy or get investors”

    Software development is not expensive to get started, and there is empirical evidence that software existed and was developed before patents were issued.

    “Business is not nice, the software business is ruthless, without patent protection Microsoft will eat your lunch as soon as you show them where the bacon is.”

    These big companies eat small ones for lunch now because the patent system is so bad. The big companies currently tell the small ones that they are infringing something. Since they are infringing, they are going to give the small business a great deal, and allow the small business to cross-license with them to avoid any trouble. The small business has no choice, and they essential get robbed. Not only do you have to worry about large companies, but you also have to worry about people outside of the industry. . The basic rule of thumb in software development as it stands is that if it is complicated, it is infringing something. And this notion is reflected by the extremely high frequency of patent litigation taking place in the software industry.

    Forget the establishment of software patents for a moment. Do you support software patents as they stand today?

  78. blind dogma January 13, 2010 12:15 pm

    “The big companies currently tell the small ones that they are infringing something.”

    That’s why Trolls are actually a good thing – yet the anti-patent people play to the big companies’ script in bandying about the term in all its perjorative glory.

    Take a big gulp of the Kool-aid everyone.

  79. Mike January 13, 2010 12:15 pm

    Prior to working in intellectual property, I did not understand patents, didn’t support patents and would have been happy had patents stayed out of academia. I did not understand how to interpret claims and did not understand what protections were offered by patents. I didn’t think that any university research should ever lead to a single patent.

    After working with patents, understanding how to interpret claims, and observing where university inventions go versus where startup business inventions go, I FULLY SUPPORT SOFTWARE PATENTS AT THIS TIME.

    Before you decry sloppy patents and broad claims, please understand how to read ALL of a claim before passing judgment.

    Patent 101,
    1. To infringe a claim, the infringer must practice each and every element of the claim. If the claim recites: “A computer method consisting of opening a new window and picking your butt.” A person who opens a new window and stands on their head would not infringe. A person who opens a new window, stands on their head and picks their butt would not infringe. Only those that 1) Open an new window AND 2) pick their butt would infringe.

    2. Patent claims are only presumed valid when the patent issues. Claims in patent applications are what the person wants, not what the person gets. Similar to a plot of land, the claim sets out the boundaries of what a person owns. If you ask a person what they own, they would say, “the yard around my house.” But if you look at the plot you would see an easement for the government where the sidewalk is, an easement in the back where the utilities go, an easement between the lots. So the person actually owns less than their yard.

    When you say someone has a patent to simply opening a new window, that would be false. If you say someone has a patent to opening a window and cite a patent APPLICATION, that would also be false. Patent claims are only valid once the patent is issued.

  80. blind dogma January 13, 2010 12:17 pm

    “… reflected by the extremely high frequency of patent litigation taking place in the software industry. ”

    And what is that frequency of litigation? Do you have any clue? (Hint – once you find out what it actually is, compare it tothe llitigation rates inmost any other business endeavor).

    Another big gulp of Kool-aid for everyone.

  81. Gene Quinn January 13, 2010 12:26 pm

    EL asks: “Do you support software patents as they stand today?”

    Absolutely not! There is a lot of crap that has issued as patents, but that does not mean that software patents should not exist period. When framed in terms of patentable subject matter under 35 USC 101 the question is whether ANY software should be patented. Software should be patentable subject matter but patents should issue if and only if all of the other patentability requirements are satisfied. This means software and computer implemented processes should be patented only if useful (easy to achieve), new, non-obvious and described with the specificity required so that others could both make and use the invention and so the boundaries of the invention are adequately defined. Where most software patents fall down (or should fall) is with respect to obviousness (always an issue) and adequate description (i.e., they fail to articulate with specificity enough to cross from idea to invention).

    EL says: “there is empirical evidence that software existed and was developed before patents were issued.”

    You may want to check your empirical evidence. Software patents have been issued for at least 4 decades, perhaps longer. They were not called “software” but what was protected is by any honest definition software or computer implemented processes.

    Nevertheless, the thrust of your point is well taken. There is no evidence that I know about which suggests software would vanish if it were not patentable. The question, however, is whether investors will fund companies that have no competitive advantage. Innovation and business require funding, copyrights are not and never will provide the scope of protection most think they do and sophisticated investors demand patents. That is well known in the industry, and well documented in literature and news reports over the last several years specifically. That is why it was such big news that the Patent Office ceased issuing patents in some technologies and held applications hostage for years and years.

    EL says: “These big companies eat small ones for lunch now because the patent system is so bad. The big companies currently tell the small ones that they are infringing something.”

    Not exactly. Stop and think about this. When was the last time a position taken by a big corporation benefited small business or start-ups? Big corporations want to scale back on the patent system because they don’t want small businesses to obtain patents that can then be used against them. That is why they rail against trolls and lobby so hard in Congress. Big businesses eat small businesses not because the patent system is bad, but because many small businesses refuse to obtain patents so they have no leverage. This is compounded by a Patent Office that operates far too slow.

    With patents and the rise of contingency representation in patent infringement small businesses can and do stand up to large businesses. Those that are pushed around are either victims of the USPTO lethargy or victims of their own desire to forego patent protection. Patents are the great equalizer because it is certainly true that if you have some there is an exceptional likelihood that big companies are infringing you as well. Just look at who is beating Microsoft in patent litigation. These are the small players with progressive and well developed patent policies and they win hundreds of millions of dollars.

    Most open source companies obtain patents because they know that they are the great equalizer. They keep big business at bay. Otherwise big business does exactly what you say, which is throw their weight around and win. Software patents are an insurance policy against being abused by big business and help ensure that you can keep doing what you are doing. Entering a patent pool, like may open source companies do, allows you to contribute some and gain the benefit of a patent portfolio. The name of the game is not ignoring patents, but using them to insulate and allow you to focus on your core business without much fear of patent litigation.

    Who thinks Microsoft is going to sue the open source coops? They won’t because they have more to lose because of the inevitable counter-suit and the ensuing patent nuclear war.

    -Gene

  82. EL January 13, 2010 3:19 pm

    “Absolutely not! There is a lot of crap that has issued as patents, but that does not mean that software patents should not exist period.”

    Great, we are now making some kind of progress on the discussion. So we both recognize a problem exists, but we disagree on what to do about it. I’m all for finding moral conclusions through mutual respect.

    I have three very specific problems with patents.
    1. General purpose patents.
    I think we are in agreement here. Your comment “they fail to articulate with specificity enough to cross from idea to invention” is the sole reason people bring up mathematics so much. The scope of these patents are often into the mathematical domain. When people bring up matheamtics, they are specifically talking about this problem. Abstract patents are a huge problem in software, and they make it impossible to release code without taking on very high risk. The abuses and damages being done by these patents are very hard to overstate.

    2. The length of time a patent is valid in software.
    20 years is a lifetime.

    3. Software patents do not publish enough information.
    Code should be required.

    “That is why they rail against trolls”
    They are very correct to rally against trolls. More often then not, these trolls have abstract patents that hit everybody.

    “because many small businesses refuse to obtain patents”

    There is a very real monetary reason why small business do not go into patents.

  83. Mike January 13, 2010 5:21 pm

    We all agree that overly-broad patents have been issued.
    We all agree that overly-broad patents are wrong. Bilski is an example where the claims are so far removed from the actual invention that the claims read on most dual party negotiations (with or without a machine). [very brief claim summary: gather information, make an offer to one party, make another offer to another party based on offer to first party.]
    Software is a tool used to accomplish certain tasks. Novel solutions to perform a task deserve patent protection the caveat being that the solution is novel and non-obvious.
    Patents, even patents to signals, have been around since electricity (look at the Morse Code patents). If the signal is modified by man to achieve a end result and process is clearly defined in the claims it should be patentable. Developing software initially may be cheap, but researching and developing a software a marketable software product can be very expensive. Those inventors deserve to recoup their investment whether it’s time, money and/or a novel idea.
    Software patents would be helped dramatically by an indexed, dated, and publicly accessable database of software algorithms. It would help programmers avoid existing patents and help the patent office find prior art in existing code.

  84. Gene Quinn January 13, 2010 5:21 pm

    EL-

    It seems we are definitely making progress. I am particularly curious about point #1. I agree with #2 completely, although it needs to be tied with the Patent Office issuing patents in a technologically relevant time frame, something I have written about quite a lot. I somewhat agree with point #3. I am not sure that I would require all of the source code because that would undoubtedly lead to knock offs, which I would rather not see. I do, however, think that the best way to illustrate is with code, so requiring at least some code could be a step in the right direction for sure.

    Not sure I agree with you regarding trolls hold abstract patents, but to be a troll is to hold a patent that affects many. The question is not whether the patent seems abstract years later during enforcement, but whether it was an innovation at the time of invention.

    Yes, but there are economical and responsible ways to proceed. I know small businesses don’t have a lot of money, and that is why I work with start-ups and individuals to pursue responsible strategies that are economical and that move forward. A patent, however, likely holds the key to getting investment.

    -Gene

  85. A. Rebentisch January 14, 2010 7:01 pm

    “You even said as much about the Amazon one click patent, which is a hobby horse for anti-software patent advocates.”

    As a side note, actually not a hobby horse. You know these patents are more like a zombie for fundraising. Every year there is another deadline, you have some formal complication and have to attend a meeting, write a PR and then it is revoked, and then appealed, and then put back to another stage, the offices are silent for another year and then you enter the next stage. Examination takes 5 years, opposition another 5 years.

    Regarding your France argument: Business method patents are not common in the EPC zone. One reason is the notion of freedom of business as a basic right.

    Your investment argument is correct but the forces are more or less the opposite. The patent system helps to invent some assets to justify an investment. We both know that there is a patent bubble. Most patents are never used.

    It is not an argument in terms of economics, it is post festum. Of course a privilege granted by the government should have a value. That does not imply there is a “free lunch” in granting privileges by the government.

  86. Ronin8317 January 22, 2010 7:43 pm

    With software patent, the only way to determine if you’re infringing or not is a multimillion dollar lawsuit. It’s good for the lawyers, but it’s bad for everyone else. The patent office is also known to grant stpid patents like ‘pressing a button to do something’. For instance, Microsoft has a patent for ‘page up’ and ‘page down’.

    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1%3Cbr%20%3E%3C/a%3E%20&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,415,666.PN.&OS=PN/7,415%3Cbr%20/%3E%20,666&RS=PN/7,415,666

    W.T.F.?????

    Where is the ‘innovation’ here? The keyboard has a page up key. You press the key, the page scrolls up. THAT is INNOVATION?

  87. Gene Quinn January 22, 2010 9:06 pm

    Ronin8317-

    I don’t agree with you that software patents are only good for lawyers, but I do certainly realize that there are many software patents out there that make you scratch your head and wonder what is going on.

    Did you read the claims in this patent? Just curious. I think you grossly over simplify the “invention.” I am not saying it should be patented, but saying this is “press the key, the page scrolls up” is misleading. So I guess I am just trying to understand what lead you to that understanding of the invention and whether you read the claims, which is the only part of the application that defines the exclusive rights granted.

    Thanks.

    -Gene

  88. Joseph Daniel Zukiger January 23, 2010 1:18 am

    Bill G., circa 2000:
    Waaaaaaaahhhhhh!!!!!!!

    Please, everyone, quit innovating so fast!!!!!!!

    We deserve the right to be free to innovate more than anyone else!!!!!!!!!

    QED:

    Why should the government turn the patent office into a king-of-the-hill contest, or promote the habit that children on the playground have of saying, “My lawyer is bigger than yours! So there!”?

    Patents on intangibles simply cannot be prevented from being abused. Period.

    The only valid way to patent software is to recognize that the source itself is the diagrams and the machine, and thus only the source, and not the ideas, should be allowed to be patented.

    But source is literary, and much better covered by copyrights.

    Old arguments, yeah, but no amount of logical fancy dancing is going to change the truth. Speaking bluntly, you are trying to drive the Constitution off a cliff. I would curse you to live in the society that results, but I don’t want to have to join you there.

    Give us a break and give up your lame Napoleanistic tendencies.

  89. Rune January 23, 2010 7:16 am

    #91:
    so you can’t evaluate a patent claim by reading the abstract, how much of the patent would you need to read?

    so say I have 50.000 lines of code I would need checked for patents, how long wold it take, and how much would it cost?

  90. jonathon January 23, 2010 11:23 am

    Since you are a fan of software patents, please explain why the USPTO should be allowed to issue a patent on something that was described in the literature in 10,000 BP.

    Then explain why the USPTO should be allowed to issue a patent on something described in the literature in 4,000 BP.

    Then explain why the USPTO should be allowed to issue a patent on something described in the literature in 1,000 BP.

    Then explain why the USPTO should be allowed to issue a patent on something described in the literature in 500 BP.

    Then explain why the USPTO should be allowed to issue a patent on something described in the literature in 0 BP.

  91. Gene Quinn January 23, 2010 12:33 pm

    Jonathon-

    First, thanks for reading IPWatchdog.com.

    Second, I am not inclined to participate in parlor tricks with those who have an agenda and are only interested in playing games and not engaging in a fair discussion or debate on the issues.

    If you care to engage in an appropriate debate/discussion that would be great. You can start by explaining what exactly was described in writing 10,000 years ago, 4,000 years ago, 1,000 years ago, 500 years ago and 0 seconds ago, and why you think those things mean that some as yet unidentified invention should not have been patented.

    I must admit that I am exceptionally interested in learning what was described in literature 0 seconds ago. Perhaps you are using BP to mean something different than “before present” I don’t know, but I can’t wait to hear what was described 0 seconds ago. I have a feeling this will take us into the twilight zone!

    -Gene

  92. Gene Quinn January 23, 2010 12:49 pm

    Rune-

    You absolutely cannot evaluate a patent by reading the abstract. The Abstract, by rule, is supposed to be a 150 word summary that is intended solely for the purpose of assisting those who search patents to learn basically what the patent is about so they can determine whether the patent needs to be read and evaluated. The Abstract plays absolutely no role in defining the exclusive rights granted.

    The only part of a patent that defines the exclusive rights is the claims. The rest of the patent is a disclosure of the full parameters of what the Inventor believes has been invented, with explanation relating to the what, where, why and how. The rights granted by the Patent Office are limited to the specific implementations in the claims. If you are not incorporating each and every element of a claim you simply cannot be infringing.

    Allow me to give an example. The claim that follows is from a patent for a carry-out food container, which is ridiculous on every level, but simple enough that everyone with any background can understand and appreciate. I wrote this up at:

    http://www.ipwatchdog.com/2008/12/01/obscure-patent-carry-out-food-container/id=613/

    Claim 1 says:

    1. A carry-out food container, comprising: (a) a food compartment tray adapted for holding a food item, and comprising four raised side edges defining an upper open end; (b) a lid for removably covering the food item contained in said tray, and said lid comprising four side edges corresponding to the side edges of said tray, and one of the lid side edges being joined to one of the tray side edges; (c) an integrally-formed hinge located at the joined side edges of said tray and said lid, and enabling pivoting movement of said lid relative to said tray between an open position and a closed position; (d) a flexible sheet with a rear edge, said rear edge attached to said food container adjacent the joined side edges of said tray and said lid, and said flexible sheet adapted for residing between said tray and said lid, and said flexible sheet being unsealed at all times to said tray along a remaining three of the tray side edges, such that said flexible sheet may be readily removed at its rear edge from said tray, whereby the attachment of said flexible sheet to said food container is sufficiently strong to prevent inadvertent removal of said sheet when folding over to cover the food item, but sufficiently weak to allow intentional removal of said sheet from said food container without tearing; and (e) wherein said flexible sheet has a length and width dimension greater than a length and width dimension of said upperopen end of said food compartment tray.

    In this claim there are many specific limitations, such as “four raised side edges.” If you create a container that is identical but has 3 raised side edges you would not infringe. There is also mention of a flexible sheet attached to the food container. If you create a container without a flexible sheet attached you would not infringe.

    The trouble with so many who complain about patents is they don’t understand the basic rule of infringement and they unnecessarily limit themselves and complain that they cannot do things that they clearly can do. It is not a problem with the patent system that people choose to not do things they have a right to do, that is a personal choice.

    In terms of cost, it is difficult to say how much it would cost. Like this patent, there are many patents that could be easily eliminated right off the bat. I just wrote an article about the difference between patent searches and infringement clearance. See:

    http://www.ipwatchdog.com/2010/01/21/difference-between-patent-searches-infringement-clearance/id=8521/

    With software there are many patents out there, and in truth none of them get asserted. The only time software patents get asserted is when a small business sues a large business. They sometimes get asserted when two large companies are attempting to create leverage against each other. Then the last category is when one business has patents and the other does not, and in those case there is simply bullying. That is why those who innovate in the software space should get at least some patents. That will insulate you to some extent. A patent attorney can always make an argument why someone is infringing, and software patents are fragile because so many probably should not be issued in an ideal world where you could spend limitless sums on searching prior art.

    -Gene

  93. RDean January 23, 2010 5:28 pm

    Those who are anti-patent are not pro copying. I’m very pro patent. The problem is that patents have drifted far afield from what the framers of the U.S. Constitution desired when they wrote Article I, Section 8, empowering Congress to establish IP protection:

    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    The problem with software patents is that they do not promote progress. I would assert with a high degree of confidence that a survey of the patents that have been issued since software became patentable would find that many of the patents were either well within the conceptual reach of software artisans, speculative, or redundant. To be quite blunt, software patents do not promote progress, which means that in their practical application, the means has become the sole end: an intellectual property land-grab that doesn’t serve to promote progress but instead to enrich a patent holder (who may or may not actually have a manifestation of the patentable subject matter, which is another contention I have with patent law).

  94. Rune January 23, 2010 7:22 pm

    Gene:
    it seams rather time consuming, hence the the second question:
    say I have 50.000 lines of code I would need checked for patents, how long wold it take, and how much would it cost?

    I know most companies russian roulette style approach to patents, but I am curious how this will affect “innovation” (cost and development time)

  95. Mike January 24, 2010 12:20 am

    We’ve gone in a complete circle. We could paste the top at the bottom and just keep reading an endless loop.

    There are some overly broad software patents that have been issued. Those are bad, pro-patent and anti-patent agree.

    Not all software patents are overly broad, most have several or many steps that are required that everyone glosses over. The preamble of the claims does nothing to define the claims (except in special circumstances).
    “1) A method of opening a window wherein … ”
    does not mean anything except “A method wherein” you can ignore the rest unless you are an attorney writing a detailed opinion with hours of analysis. Each and every step in the rest of the claim is absolutely required. If you don’t do all of the steps, more than likely you don’t infringe.
    a) a user selects …
    b) the window opens …
    c) the user eats a chocolate bar …
    d) the window automatically collects user credit card information,
    wherein the credit card information is sent to Nigeria and Jack the Ripper spends the money.
    I made this simple example to highlight some of the problems with claim interpretation and patent prosecution. The first three steps are obviously known, you can do them without infringing the patent. You would have to do all four steps and NOTABLY the “wherein” clause at the end of the claim This clause would never be infringed, unless you wrote your software specifically for “Jack the Ripper.” Even though this claim appears broad, no one could ever literally infringe it. You have to read the whole claim.

    The problems with patent prosecution are that the USPTO examiner must demonstrate with a dated reference every single element in the claim in order to prevent the claim from issuing. The examiner can show steps a) and b) from prior examples including patents (which is I believe their main source of software information). Step c) would be difficult to demonstrate because, although many people have done it, no one has written it down in a documented literature. This can now be prevented using KSR, but it would be easier if it were found in a published Weight Watchers(c) manual.
    The fourth step, although it may not be completely known, is somewhat morally corrupt. Even if the intent of the claim is not the best, the claim is still issued (except in a very few cases). They blocked feminine personal devices in the past unless they were called “massagers” and didn’t reference the female anatomy.

    In order to make patent examination easier and better, there should be a documented database of software code that was annotated and maintained a history.

    Code in the patents likely wouldn’t help very much because it wouldn’t prevent patents in two different languages from being identified. The logic diagram of the program would be the best because it captures and defines both the novelty and the method in a single diagram that is easy to follow.

  96. Mike January 24, 2010 12:27 am

    RUNE – see the following article that argues for software patents.
    http://www.ipwatchdog.com/2010/01/13/beware-those-claiming-software-patents-are-unnecessary/id=8376/

    Not all software is generated by open source and some innovations are bigger than rearranging existing code. Often larger steps in innovation require larger investments. Google paid a lot of money and time to develop and improve the search engine. Some of those inventions would be easy to copy after they were discovered but would not have been developed without a lot of investment.

    When you deny software patents, you argue against innovations that you have not even thought of yet.

  97. Tom January 24, 2010 3:17 am

    I think it would be a worthwhile exercise to try and transfer the software patent discussion to legal filings.
    Imagine that a turn-of-phrase, a clever argument, or a legal strategy employed by lawyers in filing court documents were patentable, and that every time you wrote a document you had to spend disproportionate amounts of time ensuring that your text didn’t use any(!) patented phrases, arguments or, indeed, wording patented by another lawyer.
    Should you employ any phrase, argument, or anything else, whether inadvertently or deliberately, your work will be for naught, you will spend time (and money!) trying to defend yourself against charges of deliberate copying or, worse, fraud, while trying desperately to work around the problem.
    Imagine the constraints that would put on your ability to get anything done.
    Imagine how much innovation it would foster, with lawyers spending their time innovating new words, phrases, and arguments rather than getting down to the business of defending their client(s).
    Now do you see the objections software developers have to patents…??
    One cannot help but have the feeling that the innovation it is claimed that software patents foster is happening in the legal profession.

  98. Gene Quinn January 24, 2010 12:06 pm

    Tom-

    Why would anyone imagine that? What you suggest is clearly not new, so no patent would be able to issue. So your hypothetical is counter factual and contrary to reality. If you want to try and come up with a hypothetical that is realistic we can talk about it and explore, but to compare software that is useful, new, non-obvious and innovative to something that is not new and would be obvious is like comparing elephants and mice.

    -Gene

  99. Gene Quinn January 24, 2010 12:17 pm

    Mike-

    Would you care to write up your comment #100 into an article for the blog? I think it would be quite useful to use to jump start a new discussion.

    We will probably never convince the anti-software patent folks, and they will never convince us, and that is fine. But it seems clear to me that patent attorneys know that not all software patents should be issued and a good many that have been shouldn’t have been because they are too vague and not enabled. Add onto that those that are likely not new and nonobvious and there is a problem no doubt. That, however, does not mean that ALL software patents are overly broad. Those that actually can satisfy the patentability requirements should be issued as patents.

    If you are not up for it that is fine. I can write something at some point picking up directly on this line, but wanted to offer it to you.

    Thanks.

    -Gene

  100. Mike January 25, 2010 11:13 am

    Tom,

    There are several patent patents that I know of immediately and others that I can’t recall and are difficult to find.

    See US 6,574,645 for one example.

    I realize that is not a fair argument because there is a vast difference in the quantitiy of patents in each field. Software by far has the largest number of patents filed which both demonstrates the need for software patents and the need for better examination. Because I work with patents daily, I understand that on any commercial method there are several thousand patents with art in most fields going back 50+ years. Software and hardware patents go back to the 60’s and some electrical components are much older. There is a lot of information out there that is frequently not used by inventors. As a software professional, patents may provide you a better view of the art than any literature or trade show brochure.

    The trouble is, and this is more common with older patents, some patent attorneys obfuscate (hide) the true meaning of the invention to get broader claims for their clients. These broader claims may be so confusing that the inventor, the patent attorney, the examiner, and the public don’t understand what the true invention is. Alternatively, many inventors want their paten to cover more than they actually demonstrate with the invention. Instead of drafting a claim that covers a specific type of hedge fund transaction that uses a well thought out transaction algorithm, the draft a claim that reads on most transactions with the simplest version of the algorithm. Because the attorneys/agents then take out many limitations to ensure no one side-steps the claims, they end up reading on everything. In order to prevent this, there should be better patent examination and there should be an annotated public database of patent and other software methods.

    I understand the task can be daunting at first, but if you do the search and review once for your field, you will have a pretty good picture of where the patents are and what they mean. There are always patents that you can’t find, but if you understand the field you start to understand the novelty of each patent. You will find that many of the “bad patents” are actually narrow patents that don’t block your methods. The rest you may have to think about but you can either design around or design within an existing expired patent.

    There is a balance between cost of searches, size of business, danger of infringement and existence of competitors. A guy at home programming for open source probably shouldn’t worry about infringement. You can look briefly at various patents and ensure you’re not copying them by doing a very quick search on your own. It may help you understand the field and identify some alternative methods. A larger company should definitely pay for good searches along the way: patentability before development, freedom to operate before commercialization, and non-infringement if presented with a close patent.

    There is a balance between patents and use, in the case of software patents, a pool might alleviate some of the problems and the more companies in the pool the better it would work. Talk one on one with a patent attorney to learn more about your options, costs, and likelihood of infringement and/or suit.

    Mike

  101. James Cammarata January 25, 2010 3:29 pm

    I have read your articles before, and while I may have disagreed with them before, I have never seen you get something so blatantly wrong and malicious as this comment:

    “Those who are anti-software patent are simply pro copying.”

    That is ridiculous and a bald-faced lie, on its face. Copyright law clearly prevents what you suggest, and as a software developer I have no desire to copy others work verbatum. However, if I want to create an application from scratch (which I have done many times over), I would like assurance that some troll won’t try and sue me for violating some ridiculous patent.

    You have lost all credibility in my eyes, and I will never trust you to present a level headed argument again.

  102. EL January 27, 2010 11:08 pm

    Gene, I’ll agree with you that we’ll never see eye to eye on software patents.

    The real winner of your argument is China. While the United States is fighting court cases, China will be using software to expand science, engineering, technology, and mathematics. China will overtake the US by the end of the decade.

    I’ll come back in 10 years, and well finish our discussion.

  103. Gene Quinn January 28, 2010 11:17 am

    EL-

    With all due respect, if you think China is going to surpass us because we grant software patents you are completely and totally missing the boat.

    Whether you ever want to admit it or not, the truth is that in the US those who moan about software patents give up and modify their behavior after reading the title and the Abstract of the patent, neither of which have anything to do with the exclusive rights granted. So through their ignorance of the law they are giving up and giving in based on their imagination, not based on fact or any reality.

    Having taught many Chinese students I can say that based on my experience they are extremely dedicated, hard working and they never give up. They work however long it takes and do whatever is necessary to succeed and inform themselves. If the US loses to China it will be for that reason and the lazy programmers who moaned and gave up for absolutely no reason and allowed themselves to be victims of their imagination will be to blame. NOT software patents.

    -Gene

  104. Daniel December 18, 2010 7:16 pm

    Is there, theoretically, a middle ground solution to the unfairness? Can SCOTUS feasibly make its decision applicable to future applications only?

  105. jookyone March 22, 2011 2:22 pm

    Wow, stumbled on this article with relation to current litigation between MS, Amazon, and Apple.

    The problem with the patent system and pretty much every argument that Gene Quinn makes here, is that it is nearly impossible to determine who actually is first to innovate, but LEGALLY the first to apply is the one to benefit, regardless of all other variables. And then we leave it to the legal system to verify that a person “won the race” with wasted hours of litigation paperwork, and argument. Filing first does not imply that you thought of it first.

    Just because a system allows something to happen, or even makes a definition for how something should happen, does not make it right. The letter of the law once wrote it illegal for slaves to leave their owners. Luckily the laws are changeable, and sometime in the future we will have a better solution than law we have currently.