Unfortunately, it is up to the supreme court to decide how to interpret the constitution, not you, or me, or even Gene. The most say we can have is when we vote left or right for the presidential election and there happens to be an appointment or two during his term(s). I’m not saying that in an in your face sort of way, but rather pointing out the fact that it must be interpreted by somebody, and that somebody is not us, so while it is fun to speculate and argue over it, our opinions don’t matter much.

I’ll admit that there are many problems with IP and software, including copyrights. The vast majority of software is never sold to consumers, but either written in house or contracted to be written for in house use. It isn’t likely that anybody outside the agency is ever going to look at that code, although there have been some cases involving contractors “writing” code they stole from open source projects for companies like Microsoft, Sony, Best Buy, and others. Unless you are an open source advocate and user like me, or a programmer, then there probably isn’t any source code on your computer (with the exception of some possible interpreted code like javascript).

Binary files are still a kind of code, but they can hardly be counted the same as the source code that was used to produce them since different compilers will turn the same code into different binary files, and the same compiler will turn the same code into different binary files based on optimization options and other such conditions. That is what makes up most of the software on a persons computer, not source code.

Unless your code is open source, there is no reason why anybody, including end users, should have access to it to copy it in the first place. They can however steal the processes your software implements, which were probably developed before the software was even written and probably pertains to the processing, transformation, and analysis of special data.

Consider tax software for a moment. It is hard to imagine many new processes being patented for doing taxes since taxes have been around forever, but I don’t know much about that. It does however make a great example since the processes in a tax program are really independent of the software itself. If you accept that a process for doing a persons’ taxes should be patentable, then you should also accept a patent for software that does a persons’ taxes.

The patent should cover the processes involved in actually figuring out the taxes, and the copyright should cover the actual code that implements that process. In a sense, they are protecting two different things since the only way to infringe that patent is to implement the process for calculating taxes.

I do however feel that patents need to keep their nose out of our implementation methods. Data structures, algorithms, database design, language design, etc… are based in the maths and deserve protection, if you will excuse the term, from patents. Specific combinations of those methods are protected under copyright.

Yes, that is an argument we hear all the time, although I will say you have articulated it FAR better than anyone else ever has. Usually it is “copyrights are good enough,” which is not true, but what I think they are trying to say is something like you have articulated.

Why isn’t it true? I’ve never heard anyone give a decent explanation of why this is so.

It is hard to argue that there is double dipping. You are right, but that is a fact of life, at least here in the US. The code is protected as expression and believe it or not is actually entitled to First Amendment protection. Perhaps our First Amendment is to blame for why we are different, not sure.

I don’t think that the First Amendment to your Constitution has anything to do with this. It appears (to an outsider) that the issue is more that you have what is effectively a One Party political system, with power being passed between the right and left wings of what is a corporate ogilarchy.

In the US double dipping is allowed in a number of IP areas. For example, you can get a utility patent on the functionality of a device, and a design patent on the ornamentation of the device. So in the US at least intellectual property is best understood as a web of overlapping protections.

And a software patent on the software inside the device. The question is whether or not this meets the constitutional basis on which the patent system exists.

The way I would attempt to argue that there is no double dipping is that different things are being protected. This is a legally true statement, but admittedly not satisfying when you observe correctly that software can enjoy 2 types of protections. The protections cover different things though. I suspect this is probably why some have wanted some type of sui generis protection for software and computer databases and information.

I’m a cynic. I do not see how this meets the constitutional basis that the patent system exists under. In fact looking at how the system works, I would say that the effect is the reverse of what the framers of the constitution intended, and that it is doing tremendous damage to the economy of the United States, with spill over effects on your trading partners.

Wayne

Yes, that is an argument we hear all the time, although I will say you have articulated it FAR better than anyone else ever has. Usually it is “copyrights are good enough,” which is not true, but what I think they are trying to say is something like you have articulated.

It is hard to argue that there is double dipping. You are right, but that is a fact of life, at least here in the US. The code is protected as expression and believe it or not is actually entitled to First Amendment protection. Perhaps our First Amendment is to blame for why we are different, not sure.

In the US double dipping is allowed in a number of IP areas. For example, you can get a utility patent on the functionality of a device, and a design patent on the ornamentation of the device. So in the US at least intellectual property is best understood as a web of overlapping protections.

The way I would attempt to argue that there is no double dipping is that different things are being protected. This is a legally true statement, but admittedly not satisfying when you observe correctly that software can enjoy 2 types of protections. The protections cover different things though. I suspect this is probably why some have wanted some type of sui generis protection for software and computer databases and information.

-Gene

But if software can be covered by patent, it should not be covered by copyright. In Canada we call that Double Dipping.

Wayne

See: http://www.ipwatchdog.com/2010/06/14/speculating-no-bilski-decision-this-term/id=11154/

I enjoyed your time on the soap box… really, because I learn and gain a larger picture !

You say: “I believe that processes are not patentable, not without a clear examination of the full impact of the process, upon all other areas it does / may involve. This I believe is the problem with patent claims, that are far reaching with language that involves many areas around them.”

That is exactly right, and you are focusing on the perfect part of the problem.

There is no justifiable reason that software should not be patentable subject matter, but that is only the first, very low, threshold inquiry. Where software, and every other invention for that matter, typically falls out is under novelty (i.e., newness under Section 102) and obviousness (i.e., triviality or common sense under Section 103). What you are focusing on here is novelty and obviousness.

Nothing is supposed to be patented without consideration of whether the claims are so broad that they cover other areas and implementations in such a way that they are so broad that they capture things in the prior art. So to the extent there has historically be problems with software, and let’s be honest… there have been problems indeed, it is because the patent claims are so broad and cover implementations that are in the prior art. A lot of times the most revolutionary patents are not the problems that the industry makes them out to be though because by the time they come to light and get litigated it is a decade after the fact, and back when the patent was filed it was new and non-obvious. But many times there are problems.

The trouble with all of this is that the patent examiner is supposed to do what you suggest. They are supposed to look at everything, but we give them about 15 hours per case, perhaps a little longer in complicated areas, but not much longer. There is only so much they can do in that amount of time and it is not satisfying. So many (if not most or even all )patents do not get the scrutiny they should to be presumed valid. It just doesn’t make sense to do a no stone unturned examination when somewhere between 94% to 98% of patents wind up not being commercially relevant.

More developed reexamination procedures at the USPTO can help, but that process is so slow. In the end it comes down to funding. The USPTO is the innovation agency and can create wealth at will that would spur the economy, particularly if they can get it right, but Congress under funds them and then raids the funds to pay for pet projects that have nothing to do with innovation. Pathetic.

Stepping off my soap box… for now…

-Gene

I want to take an extra step back and start with my example, where I failed to provide, as I see now some important information.

The information is the context, the tool (hammer) is being used; as for my example it would be in construction. I believe now that would fit better with using “process” at that point, with a tool (hammer) as one function of many to a result ?

As a whole, tasks tools handle in cooperation as in construction; I will guess any one of them could be viewed on an individual basis, as a single process ? The driving of a nail with a hammer, takes knowledge experience and skill when the task is in cooperation with others as in construction.

I believe then, that the task that requires a “hammer” is more about the person using it, then any interpretation of it as being a process. A process patent here, would involve such persons with all attributes as mentioned above and would impact them.

Again, only to bring this all together: Processes are not patentable, not without a clear examination of the full impact of the process, upon all other areas it does / may involve.
Thanks.

I would LOVE to live in Hawaii. I have been there twice, last time on my honeymoon as well. Gotta love the ABC stores there. Nothing fancy to be sure, but they seem to have the stuff that you are most likely to have forgotten or planned on buying there rather than bringing with. Which island did you go t?

I live in Northern Virginia (Loudoun County). The ABC stores here are liquor only.

Your software patent views have certainly matured and it seems we agree. Focus on the process with software. If you do so much of it will fall out anyway as not being new or as being obvious.

Would still love to have an article from you. It would be great to get the perspective of someone in the industry who once was a skeptic but has gone through the journey to acceptance. This would particularly be great reading because it seems you have thought about the issue so much you cut straight to the chase and can parse out the mathematical ideas and the difference between the language/code and the implemented process.

Great to have you back posting.

-Gene