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The Role for Open Source in Paradigm Shifting Innovation


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: August 15, 2010 @ 8:30 am
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My writings about open source and software patents have earned me a special place in the hearts and minds of those who harbor irrational hatred of software patents. But I am here to tell you that open source is not all bad and, in fact, should be embraced. Open source, however, is hardly something new to the patent community. Perhaps it is better to say that where open source software is heading is nothing new, and it will come as a shock to those who hate patents, but patents will be completely necessary in order for the open source community to continue to advance and live up to its full potential.

Of course, many in the open source community simply do not want patents and would rather they go away altogether. They choose to believe that “innovation” is synonymous with “independent creation,” which is just straight up intellectually dishonest. In order to innovate one must create a new device or a new process. Simply stated, copying the work of others is not innovative; and neither is ignoring what others have done and independently creating something with careless disregard of whether it is new or used.

Red Hat, the well known open source company, has no love for software patents. In fact, they really would prefer that software patents become extinct; abolished altogether. They are, however, sophisticated in the world of business and understand that there is no mileage in taking a self defeating position based on ideology. In fact, Red Hat’s patent policy explains:

[W]e are forced to live in the world as it is, and that world currently permits software patents. A relatively small number of very large companies have amassed large numbers of software patents. We believe such massive software patent portfolios are ripe for misuse because of the questionable nature of many software patents generally and because of the high cost of patent litigation.

One defense against such misuse is to develop a corresponding portfolio of software patents for defensive purposes. Many software companies, both open source and proprietary, pursue this strategy. In the interests of our company and in an attempt to protect and promote the open source community, Red Hat has elected to adopt this same stance. We do so reluctantly because of the perceived inconsistency with our stance against software patents; however, prudence dictates this position.

For the life of me I don’t understand why any business would knowingly open and pursue a path that is likely not to succeed.  Likewise, I don’t understand why governments choose to forward policies that have never worked, such as a tax policy that raises rates during a recession, increased regulation that makes doing business more expensive and onerous mandates on businesses and state governments that work to squeeze growth out of the economy.  For crying out loud, the economy is doing everything it can to grow and release the tidal wave of economic activity that is practically begging to be unleashed!  For me it makes sense to pick policies and engage in activities that have succeeded in the past, not those that have never succeed.  It also makes sense to model business, and government, off of similar enterprises that have succeed.

I almost can’t believe that it is a revelation to pattern after success.  For the sake of Pete, why would you want to model yourself off a failure?  Those self help books at the bookstore have titles like The 7 Habits of Highly Effective People, 11 Ways Highly Successful People Approach Life and Work, How Successful People Win or 100 Simple Secrets of Successful People.  No one ever seems to write about following the lessons of unsuccessful people or modeling yourself or your business after failures.  The closest title I could find, in fact, was How to Become a Total Failure: The Ten Rules of Unsuccessful People, which seems like a cautionary tale about failure and attempts to show unsuccessful people what is holding them back.  So why would anyone celebrate failure or aspire to be unsuccessful?  Why would governments pursue policies that have always failed?  Why would anyone seek to make it harder to succeed in business simply based on their own ideology?  I don’t know.

The reality is investors love patents, having a patent portfolio makes it more likely you will NOT get sued for patent infringement, successful companies have patents and perhaps the largest, most successful anti-patent company states on its website that it is silly to ignore the business reality that software patents can and do exist, whatever their preference of ideological views might suggest.

The real trouble with the so-called debate over software patents is that it really isn’t a debate.  Software patents do exist.  Software is patent eligible.  The United States Supreme Court had an opportunity in Bilski v. Kappos to say software is not patentable and didn’t take it.  In fact, 8 out of the 9 Justices indicated that software is patentable subject matter.  Only Justice Scalia, who would prefer that life, law and technology be frozen in 1789 didn’t say or suggest that software is patent eligible.  For more on Bilski v. Kappos see our continuing coverage of Bilski v. Kappos.

The other problem with the so-called debate is that the vitriolic back and forth mires those debating and entrenches hearts.  Lost is the opportunity to focus on what open source is very good at. Open source is in some situations the perfect way to innovate, but only so long as those who are partaking in the endeavor are actually trying to innovate.  So many in the open source community are free riders who do not read patents let alone look for them.  They do not attempt to inform themselves about what others have done, and without such knowledge innovating is left to pure chance.  You simply cannot innovate if you copy what has already been done.  Innovation requires a new and nonobvious device, process or compound.  Independent creation is not innovation, it is just independent creation, period!

What makes open source perfect for innovation, when everyone buys into the effort to actually innovate (i.e., create something new and nonobvious) is that it is cooperative.  Open source is perfect for a joint venture scenario, whether between Academia and the private sector or between and among companies in the private sector who seek to raise the industry to a certain level and perhaps tackle seemingly insurmountable technical problems.  Insurmountable technical impediments are unlikely to be overcome if they require basic scientific research, which is where Academia and Bayh Dole come in, but there is no reason why private sector companies couldn’t and shouldn’t bond together through joint ventures.

Open source joint innovative ventures can pool the technologies and exclusive rights of the members and allow those participating to engage in acts that would otherwise be infringing.  This is nothing more than a collaborative patent pool, and something that many open source efforts are increasingly tending toward.  The sticking point for many open source efforts, and why they fail or lead to the creation of ever more open source regimes, is that they ignore human nature.  Open source should be about innovation to a certain level or standard.  Then let the players build off that base in a proprietary way. In my opinion open source should be base building or standard setting.

There is an important role that open source could play moving forward, and that role is to set the foundation of innovation and technology, which is no small task in terms of importance and seems to perfectly fit with open sources strengths.  But too many open source regimes are like the Borg of Star Trek fame, or a little like the Mafia.  Once you are a member you simply cannot get out.  With too many open source regimes once you join and take then anything that you produce must be free to be taken by other members of the consortium.  It really is akin to a patent deal with the devil, and ignores human tendencies.  Ingrained in almost everyone is a feeling they should be able to profit from their own work, and most would feel injured if they worked and others were allowed to take without some kind of in kind return.

This type of in kind return is at its very core what is behind patent licensing.  Those who hate patents would rather you not know that overwhelmingly patent rights are not enforced, but rather they are traded among and between market players.  I have this and need that, well you have that and need this.  A deal is made.  So patents simply don’t harm innovation.  The failure to engage in appropriate business practices impedes innovation.  Patents are merely an exclusive right that forces you to either stay away, do a deal with the party owning the patent or invent around the patent.  The inventing around is what fosters innovation and is, in fact, what happens every day.  So those who think patents impede innovation are either clueless or trying to sell you snake oil.

One of the reasons that open source should be and can be the future of innovation, particularly the type of paradigm shifting innovation that we want to encourage, is because of the trouble associated with Rambus’ standard setting saga.  The Rambus saga aptly demonstrates the difficulties that lie in front of industry leaders who meet and attempt to adopt a platform to build upon. The Rambus difficulties are no so famous (or infamous) that I wonder whether any industry giant or technology leader would ever do what Rambus did, which seems akin to having strolled into the lions den without as much as a sword in hand. This is truly unfortunate given that we live in an increasingly complex and technologically advanced society, so interoperability would not only just be nice, but increasingly it is essential. How much productivity, and sanity for that matter, is lost as a result of simple lack of compatibility? I suspect the lost productivity (and sanity) are far greater than anyone would dare imagine.

The inability for innovations to work across a common platform really does stall innovation in many respects. Not because science and technology cannot advance but because consumers buy into one particular platform and then have a vested interest to continue on that path, accepting inferior products over time because of being (or feeling) locked in. That is something that I have struggled with on the Microsoft front, and I am about ready to go all Apple everything. It is a big decision though because of investments in hardware and software, and the lost opportunity costs associated with the investment in time during a switch over. Buying into Apple also is buying into something that is not very open, but at least it works, which is increasingly something that Microsoft does not do for me. In fact, Microsoft products are a lot like Star Trek movies; only about every other one seems worthwhile.

I really have no wrath against open source developers. My wrath, if any, is directed toward ignorance. Open source developers are being told a bunch of lies and accept them as true because it fits into their world view. Many also settle for not innovating and simply copying, or taking whatever they can get their hands on.

Open source can and should play a vibrant role, and works best as a patent pool where everyone cooperates and shares innovations. But not looking to innovate and pretending that copying others is innovative is ridiculous. That just ensures the same ideas and innovations have longer shelf life than they should, which is something that has historically been a criticism of Microsoft.  Oh the irony!

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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Open Source, Patents, Software

About the Author

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

 

104 comments
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  1. Your argument against MS is completely lost on me! I don’t understand what your problem is with MS products, they’ve served me well over the years and ive tried using so called open software.

  2. @Gene

    “One defense against such misuse is to develop a corresponding portfolio of software patents for defensive purposes. ”

    Wow, you should go back two or more days ago, when I said the very same thing ! The hate it seems is for Open Source as well, as the number of writings on this may give the idea, may be on the top of the list. You see Gene, we have known this longer then you, because, Open Source just five of six years ago wasn’t the threat to the money from patents as it is today. Before that those of Open Source were doing it and it was largely unnoticed. When people believe in something, profit is not aways primary.

    “My writings about open source and software patents have earned me a special place in the hearts and minds of those who harbor irrational hatred of software patents. But I am here to tell you that open source is not all bad and, in fact, should be embraced.”

    Oh thank you Gene…

    Funny thing Gene, that seems not to be really mentioned, is that soooo many want this “Open Source” and they are — of their own free will joining Open Source with all its irrational hatred of software patents. Can you answer that ? Yes, many that are of the patent school of thought that is the real threat …right Gene, that they join with those of irrational hatred of software patents …what ? Can you answer that they are doing it of their own free will ? The joining is not a defensive one, again, they want it !

    You see Gene, the light from the light-bulb you have switched on is dull; knowing a danger and how to deal with it …and not; is the difference between those that make change happen — and those that just sign patent licensing — respectfully. Patents for defensive purposes doesn’t make them rule the day, as I think you will agree, that long ago “better” weapons were not something you share with those that mean you harm. So if Open Source is a threat to them, then why share the the “better” weapons (their patents) with them …of irrational hatred of software patents. Can you answer that they are not taking down open source but in fact …joining it ?

    The name calling is taking away from your points Gene, “harbor irrational hatred of software patents”, when those as I have, try and make you understand “us”. You retreat to the Law and in my opinion taking advantage of the fact that those as I, admitting knowing next to nothing about the said Law, to make someone out to having a “irrational hatred of software patents”.

    In time, the growth of patents for defensive purposes along with the litigation, will call for action to be taken by those making Law. Seeing that the patent system has reached a self destructive point potentially taking much around it with it if something isn’t done. This action is already in motion in many parts of the World already.

  3. I after reading my first post here, see the mess it is. And want to sum it up and clean it up in better form here.
    Thanks.

    Gene you really need to offer answers to some obvious questions about what is going on with Open Source and those of the patent community today ?. Seems a slap in the face doesn’t it ? Answers that would offer a reader now, some understanding why some of a patent community would join the Open Source community in a cooperation as the Linux Foundation. So Gene, question one, why have so many made the (free will) choice to join the LF, with all of their patents in a cooperation with those as you characterize as nothing short of taking part in theft ?. Do you have an answer ?

    The truth is Gene that the only problem with this cooperation is that those having joined the LF aren’t really going to use all those patents against Open Source and just may profit too ?.

    Again: IBM some time ago, opened up some 500 patents for Open Source use…

    http://itmanagement.earthweb.com/entdev/article.php/3457381/IBM-Pledges-Patents-to-Open-Source.htm

    http://www.devsource.com/c/a/Techniques/IBM-Gives-500-Patents-to-OpenSource-Developers/

    The facts are Gene that these (patent) 70+ members of the LF know that such cooperation does work ! And in my opinion IBM knows this success better then any, with a profit from those patents without the cost and problems of litigation, let alone the loss of innovation as the result. Sounds like someone got real smart ? Building relationships makes success, and not holding on to as many patents as one can, so tight to prevent others from creating innovation, innovation that just may take market away from the patents.

    Nice try Gene, having everyone search patents ? as a well known fact, that in a Court of Law that this could go against them. And, in my opinion, that it would place more control over others innovation (OSS) that could be crushed before it ever gets beyond the search point.

    Question two Gene, what is the answer to question one ? I could go on with other success stories about your patent people, that have taken a place in cooperation with OSS, that seems very odd to me, when taking your point of view on Open Source. This Open Source, it is world wide, and so, larger then the community itself. This has taken on a life of its own, as many are taking steps away from control making choices that work for more then a hand full.

    Gene, the fact is that the “Law” was given to you, and those that make the Law can take it away. Software patents are new on the patent landscape. And when you take that with the growing cooperation on one hand, and the growing litigation on the other with its loss of jobs money, will have the attention of Law makers soon enough. The patent tax will become too much to pay when others are successful without patents as litigation tools — rather, they are in cooperation making jobs and money. The need for software patents will become a harder point to sell, when Law makers are having to answer to those that vote.

  4. Best quote of the morning:

    I after reading my first post here, see the mess it is.

    New Here, may I repeat my earlier advice – learn the basics of the English language from the standpoint as it was meant to communicate to others rather than as a tool to catalogue your random thoughts. WHat you think of as unrestrained creativity comes across as “the mess it is“.

  5. Blind Dogma — nice comment, and so appropriate. Once person’s “stream of consciousness” is the next person’s “ravings of a madman.”

    New Here — you need some perspective.

    Software patents are not “new on the patent landscape” as you allege. Computer-implemented inventions (e.g., software) have been patentable for close to 40 years now. In that 40 years, I think most would think that software has experienced mind-boggling growth. As such, you have to overcome the evidence that exists in everybody’s mind that the growth of software has not been hindered by patents. Remember, for the vast majority, they don’t care what the experts say, because every side has their own expert that’ll say what their respective side wants. Instead, they rely upon what they see in their everyday life — not good for your side.

    Your comment that “When people believe in something, profit is not aways primary” is very telling. It smacks of socialism/communism — the notion that everybody works together towards the common good with no expectation of pay except for being part of the commons. It is an easy argument to make against the “no software patent” side, and an argument that resonates among many.

    Your reliance upon the number of members in the Linux Foundation is sadly misplaced. Everybody likes open source — when it is not in their core business. If I’m a hardware manufacturer, I want to be able to ship my hardware with free software. However, if you also make software (for a profit) in one particular area, I can guarantee you that they will not want open source software to be used in that particular area. It is simple business economics. Many of these business may be savvy enough to realize a freebie when the see it, but they are also savvy enough to realize that open source, out of control, can be a threat to their business.

    As for IBM handing over 500 patents to open source, please realize that IBM, has somewhere around 40,000-60,000 U.S. Patents. In 2009, IBM had nearly 5000 patents issued alone. I cannot speak for IBM’s motives, but 500 patents is a drop in the bucket, and IBM is showing no signs of being software-patent hostile in any manner whatsoever.

    FYI — the public doesn’t really get excited when companies sue other companies. Whether it is for 1M, $100M or $1B, the numbers are as meaningless as monopoly money. Try to shut down blackberries, like what almost happened in 2005, and the public gets a little antsy, but that happens very infrequently.

    I’m sure Oracle’s suit against Google may raise the profile of software patents a bit, but that too will ultimately settle, and the world will go back to thinking about more important things — like what Mel Gibson is ranting about this week or Lady Gaga’s latest publicity stunt.

    There just isn’t enough clammoring from the masses for any expanded period of time to justify the government taking away of previously-granted property rights worth billions, if not trillions of dollars. If you think the open source community has the kind of juice to make that happen, you are sorely mistaken.

  6. ” It really is akin to a patent deal with the devil, and ignores human tendencies. Ingrained in almost everyone is a feeling they should be able to profit from their own work, and most would feel injured if they worked and others were allowed to take without some kind of in kind return.”

    Gene,

    This just seems darkly cynical to me. Plenty of people donate their time and labor to endless causes, charitable and otherwise. Why is it such a problem with open source?

    I can certainly see and agree with you that they put up lots of specious arguments against patents, and you certainly do a good job of addressing them, but in reading this and other posts, it just seems like you have this absolute hatred of open source and won’t rest until every last one of those open sourcers rolls over and starts patenting everything they can. If they want to donate their time and effort, let them.

    Just so you know where I stand, I am all in favor of patents, I believe that they overall they do not stifle innovation and that software can be patented.

    John

  7. A few points to address.

    “So patents simply don’t harm innovation.”
    This is an outright lie. Patents harm innovation, and patents help innovation. The idea is that the benefits outweigh the cost, but that is very dependent upon the system itself appropriately addressing the environment and the public’s interests. A patent system that does not do this can significantly harm innovation.

    Yes, a lot of FOSS projects do copy features and ideas from proprietary projects. However, most of the software world is doing that, and the degree of patent infringement occurring with proprietary software is not that different than with FOSS. This is a good thing, because we need competition both to provide an equitable environment and to provide an impetus for innovation. The percentage of practicing entities that infringe patents is probably near 100%, and even within patents, FOSS firms have done a pretty good job compared to their proprietary peers, and the comparison of copyright infringement makes proprietary firms look very bad at following the rules, even though catching FOSS infringing is easier from a technical perspective . If anything, the FOSS community has a minor technical advantage in following patent law in regards to a large overlap of Unix philosophy, meaning that FOSS projects are often smaller than their proprietary counterparts, so with less space used there is less of a chance of infringement.

    As for your proposed role for FOSS, I would agree that it works well as a base to build a proprietary product upon. However, it also works as end product, built on a FOSS base, a proprietary base, or a mixed base. It works for helping a company bring new life into an old business, like IBM’s mainframe line. It works for letting new products into the market, such as x86_64, netbooks, and USB 3.0, all of which were jumpstarted by FOSS. The strengths of FOSS are not identical across different areas, but there isn’t an area where FOSS doesn’t work at all, and the fact that it causes discomfort for proprietary companies is not a reason for FOSS to stay out, especially since they are using the rules that copyright sets forward.

    “Once you are a member you simply cannot get out. With too many open source regimes once you join and take then anything that you produce must be free to be taken by other members of the consortium.”
    I think that you are addressing copyleft, but you are grossly characterizing it inappropriately moreso than the old cancer rant by Ballmer. Copyleft licenses such as the GPL only limit you to what the license demands for the work itself or derivatives thereof during the period of copyright protection, which is the same as any other license. If you make non-derivative works, you can license said work however you want.

    Now, as to where software patents fit in, I think there is a good degree of inherent conflict. Significant parts of the FOSS community want to allow users to be able to run FOSS end to end for any purpose if they so choose, but patents get in the way of that, and especially interfere with decentralized networks of distribution that make up one the greatest strengths of FOSS. Now, when it comes to the public’s interest, there is also a bit of competition between the two as well. Both FOSS and patents provide disclosure, but FOSS doesn’t protect the general idea itself, just the particular implementation of it (which is itself open to any party, so long as they follow the condition the author(s) allows, and even these condition can be circumvented if you get their permission), so there is more open space left for innovation. If FOSS was predominant, the disclosure end of software patents could be almost completely nullified.

    Another difference is the barrier to entry. Patents raise the barrier to entry, even when they are part of defensive pools such as OIN. OIN doesn’t want to take unnecessary risks, so they don’t protect the tiny SourceForge project, they only protect ‘essential’ products which are generally developed mostly by large corporations. FOSS, on the other hand, lowers the barrier to entry. A Comp Sci III student could reasonably write a basic web browser within a weekend by building upon webkit or gecko. Perhaps more importantly, it makes getting a legal product to the developing world more economic. One of Henry Ford’s greatest innovations was implementing an adequate wage to his work force to buy an affordable product. FOSS can help bring computers to billions and create both a customer base and a creative force that can foster a vibrant global economy that will itself foster lots of innovation.

  8. As I understand it, the real problem with using “open source” software is that due to its unusual license agreements is that it is not really “open,” it is acquisitive. If you use it, even accidentally, in any part of an expensive private development of what you thought was going to be proprietary software you may have unintentionally given ALL of it away for free.
    {Responsive comments?}

  9. @Paul F. Morgan
    When it comes to internal usage, any licensed approved by the FSF or OSI considers licenses that don’t allow you to use a modified version internally is considered non-open or non-free. Google most likely uses a modified version of the Linux kernel to meet their specific uses. However, since they don’t distribute it, they have no restrictions, and can even mix in things from incompatible licenses. When you distribute software, you have to follow the terms of the the license, such as the GPL, but if you are not aware that you are distributing GPL code, I would contend that you have bigger concerns with competence somewhere along the line.

  10. @Morgan

    Google I know for sure uses Linux, on their server-farms and so on. But Google doesn’t re-distribute the sources to those Linux kernels, so have no commit to share what they have done with them. That is one important way the GPL license works. Google’s implementation of Linux, is in a small way a proprietary approach to using GPL’d Open Source — the Linux kernel that happens to be at the heart of their business.

    As for the meaning of “open”, that has become a real problem for Open Source, as one, a source for marketing and just using the word to get attention to what may have nothing to do with Open Source.

    Another problem has been the misunderstanding of “Free Software”, as some believe that it means the use of work by others (OSS) without responsibility for it. Unusual as the GPL may be from some points of view, doesn’t mean the works are given away for profit and no return of credit due. I will say, be sure of what you are using, and if you don’t like Open Source licensing …don’t use it or the software !

    One point of view that I have against software patents, is that the PTO is home to everything, and to characterize others as taking part in theft. Apple years ago went to the Xerox Corp where they found most of the ideas for the first gui on an Apple PC. Xerox Corp has had gui tech as of the very early ‘1970s. The Xerox Corp license at that time was “open” like their doors, and it seems they did welcome others as Apple to share in their technology. Taking where Apple’s gui is today from its start with the Xerox Corp …theft?

  11. successful companies have patents

    Perhaps more accurately “Successful manufacturing companies have patents”. Traditionally, service companies (insurance, finance, temp agencies, hospitals, law firms, etc.) have had no patents. Software companies blur the distinction. Are they providing a manufactured product or a service? Hence the struggle to find an appropriate form of intellectual property protection.

    More here: “ Introducing patents into a major service industry” http://bit.ly/cDzR2w

  12. 1. RE: ” if you are not aware that you are distributing GPL code, I would contend that you have bigger concerns with competence somewhere along the line.”

    Response: With many hundreds of IP contractually insensitive or clueless personel writing huge amounts of software for numerous products and/or customer services [not just for internal use] in or for large companies, much of it outsourced, controlling and tracking where they got all their software starting materials, or removing it after it is out to customers, is nearly impossible.

    2. Re: “Xerox Corp has had GUI tech as of the very early ‘1970s.”
    [Yes, the key GUI tech, as the subsequent Apple attempted lawsuit against MS established].
    “The Xerox Corp license at that time was “open” like their doors, and it seems they did welcome others as Apple to share [for free] in their technology.”
    Response: Other than for “Ethernet”, NO. [Albiet certain managers and employees did act that way, contrary to the interests of their employer's stockholders.] Also, at that time, obtaining GUI software related patents was more difficult, even if it had been better attempted. And the cost of memory and PC’s at the time was too high for mass marketing.

  13. @Morgan

    “1. RE: ” if you are not aware that you are distributing GPL code, I would contend that you have bigger concerns with competence somewhere along the line.””

    “If you are not aware that you are distributing GPL code”, that is not an easy thing to do. If you read the license, because you know all software comes with some form of a license written or not ? I think the real problem is respect for licensing that it seems when talking about “Open Source” or “Free Software”, is the problem. It seems most would like the GPL for example, to be more like a EULA, being able to create yet more of the same – proprietary software. I ask though, if the GPL were like a EULA, would the users care about the code they could use as they please — as mush as they do now with respect to patents ?

    The intent of the GPL over the past 19 years is clear, anyone as far back as 18.999 years ago could have read the license and understood it. The idea that somehow no one knows or understands the GPL ?, with the risk not being aware that you are distributing it ? that Sir is a crock !

    My question to Gene is a good one, why are so many patent folk joining with the Open Source bunch, those hippies that don’t patent and have a hate for patents as well. What is the answer to that …how do you give an answer that some biggest patent players and many more are joining those Open Source people …oh my !

  14. @Paul F. Morgan
    These companies need to keep track of the origin of their code. If the code is proprietary and not licensed for them to redistribute, the copyright holder will be very likely to take action, and will probably be much more aggressive than most of the FOSS crowd’s lawyers, who usually send out warning letters first with instructions on how to comply and to stop distributing if they can’t (I think there have been about two cases that actually went to court).
    Keeping track of the origin of code is much easier than discovering what patents you might infringe, so if you can’t expect companies to respect copyright licenses for FOSS, then you can never in a million years expect them to respect software patents.

  15. BTW, re some of the above comments about “open source” software, how do you explain the big new Oracle v. Google suit on Java copyrights [as well as 5 patents] for all Androids?

  16. @Paul F. Morgan
    I think the problem stems from the fact that Android is using their own JVM (Dalvik) that is supposedly written from scratch. That means it doesn’t get the patent or copyright protections from the GPL, which the Oracle JVM is available under. As for the copyright infringement, if the claim is legit, it could be rectified by removing the infringing code or licensing Dalvik under the GPL instead of the Apache License, and if Dalvik were a derivative of the original JVM (and thus licensed under the GPL), it should be safe from the patent claims, although I’m not 100% sure on the patents part as it’s been a while since I’ve brushed up on the specifics of the GPL’s patent clause.

  17. With regard to Oracle v Google, I explain my take on the role of open source licenses in an article on my blog: http://patentology.blogspot.com/2010/08/why-has-oracle-sued-google.html.

    For Android to have the benefit of protection under the GPL, it would need to be “derived” in the sense of actually using the original Java code, and being released under the same GPL license. If you read my article, you will see that I believe this would defeat Google’s intentions, and be extremely problematic for all of the manufacturers of Android-based devices. Indeed, the outcome of this case is already of vital interest to all Android users and developers.

  18. Apologies for going off-topic, but

    I just stumbled across a rather interesting thread at http://ipkitten.blogspot.com/2010/08/two-titles-on-patents.html

    What sparked my interest was the reference to the venerable Chisum (of Chisum on Patents) and his 24 year old paper dealing with “software patents”. U Pitt, L Review 47, 959971, (1986).

    The paper savages many of the foundational arguments that I have seen from those that despise “software patents”. In fact, the paper completely ravages the US Supreme Court’s Benson decision – decidely indicating that Stevens’ anti-patent views are a throw-back to the venomous Supreme Court days prior to Congress slapping back with the 1952 Act.

    I am interested in scholarly rebuttals to this paper, so that I can create a balanced view (if possible).

    I would find it very hard to believe that in the quarter century since the paper was published, that there have not been some solidly written counter views.

  19. Ironic that someone using WordPress would write that successful companies need patents.

    Maybe a closed-source proprietary solution should be in order?

  20. Kari-

    Would love for you to expand. Obviously my using a free solution is not at all contrary to the reality that software companies should have patents. I guess you are not that knowledgeable so if you can elaborate on your confusion I am happy to break it down and explain it for you so you can understand.

    For now I’ll just say this- why would anyone pay when something free works fine? That is why open sorce free software is doomed to fail. There are, of course other reasons.

    Sent from iphone

  21. Ironic and Contrary have two distinct definitions. I’m 99% certain I wrote Ironic, I didn’t say it’s contrary. If I did, please correct me.

    I have no idea how you could guess anything from my comment. Also, I’m not knowledgeable in what? If you can elaborate a more detailed question I can answer it.

    The discussion is already closed. You’ve already decided on what is right and what is wrong.

    I don’t know why someone would pay for something when something free works fine. They’d be stupid to do so. Ironically, that’s a reason why open source is ‘successful’ (Yes, that’s subjective. Ranging from Android to Gentoo to OpenOffice).

  22. Kari-

    So it is your position that it makes business sense to create software and give it away for free? And you wonder why I think you are not knowledgeable? Really?

    Allow me to explain. In order to stay in business you have to make money and giving your product away for free means you are relegated to accepting donations. That means such companies won’t ever be successful. But by all means please feel free to spend time, money and energy to create software only to give it away for free.

    Sent from iphone

  23. @Gene
    You seem to not be paying attention to economic models that have been around for over a century. Loss leaders are the norm in many industries, from razors to printers to gaming consoles to movie theatres to gas stations. The economics of FOSS development are less straightforward than proprietary software, but quite a few models have come forward. There is the Red Hat model of selling support, which is something that will always be needed. There is the model Mozilla employs where funding comes from a company that benefits from said technology provides funding, which is Google in Mozilla’s case. There is a bounty method, which implements features based upon funding where more funding means the feature is implemented sooner. There are hardware vendors that want their hardware to be useful, so they fund development to ensure this happens. Finally, there is the charity/academia/volunteer model you seem to think that FOSS ultimately uses. This is not adequate for all tasks, but it is adequate for some. Sometimes, the technology to make software significantly more useful will not happen for years. Companies selling this kind of software don’t have a model for dealing with this dilemma, and may just shove in useless features in order to attempt to keep selling a product instead of just moving on to other products. This is perhaps the most unsustainable practice in the software industry, and it’s a problem that FOSS is generally more capable of avoiding. Some projects use a few of these methods in combination, and I wouldn’t be surprised if a few more viable models were developed in the future.

  24. @Gene

    “For now I’ll just say this- why would anyone pay when something free works fine? That is why open sorce free software is doomed to fail. There are, of course other reasons.”

    You still don’t understand “free” do you Gene ? as so many believe that it means “free of charge” and nothing else. Well, you all, are wrong.

    “Rising tide lifts all boats”
    http://tech.fortune.cnn.com/2010/08/16/how-corporate-america-went-open-source/
    “”A Forrester Research survey of the business landscape in the third quarter of last year found that 48% of respondents were using open source operating systems, and 57% were using open source code, which are the building blocks of software. A similar survey of 300 large public and private companies conducted by Accenture this August found that half are committed to open source software, with 38% saying they would begin using open-source software for “mission-critical” applications over the next 12 months.””

    Gene, an open source development sphere is growing, and some of the largest patent owners are providing the protection for it –But here comes the kicker Gene ! the protection their patents provide are against other patents ! Where is the success in patents against patents Gene ? To mention again, that many have joined those doomed to fail open source folks, having greater success with many patents of many others protecting them too.

    The success of open source isn’t the misunderstanding of “free”, fact, those that can save money, can accomplish the same sustainable profit-gain business models because their products and/or services pay a great deal less then the patent taxes.

  25. Polly no wanna patent:
    http://opensource.com/law/10/8/weak-case-software-patents#comment-2184

    Dodo birds of a same feather, it is said, flock together.

    We should all be like Dilbert:
    (link)
    and blindly obey the pointed hair man.

    After all, a cubicle is a comfy cave to spend the rest of your life in. Why bother having an original thought of your own when you can simply parrot the bird songs of your fellow cubicle dwellers?

    Polly no wanna patent. Squawk!
    Polly no wanna patent. Squawk!
    What? Me think for myself? Squawk

  26. Giving software away and making money off software are mutually exclusive. To you it’s as if one is the other. For some reason, to make money, your argument is that you can’t be giving your software for free. Did you know that non open source software is given away for free, too? That non open source software makes money. (Also, your responses go from targeting Open Source Software, to targeting Free Software. If something is free it doesn’t mean it’s open source, just a FYI)

    Does WordPress not make money as a company? Are they failing? Really? Looks like what you’re saying is not the reality because WordPress is a successful company. A quick Google search finds this: http://tiny.cc/k215c. Apparently, a lot of large companies find their solution better than proprietary solutions. You’re also providing them with free advertising.

    Are you suggesting that Google should charge per search query (i.e. their product)? I hope you don’t propose business plans for new companies. If Google charged for their search they would definitely lose their large user base followed by their ad revenue.

    I know. The reality is that I’m not knowledgeable, right?

  27. Some projects use a few of these methods in combination, and I wouldn’t be surprised if a few more viable models were developed in the future.

    Bobby, I suggest you look into patenting those methods.

    Anon, you are kidding right? If after 24 years the anti-software crowd has not put together scholarly rebuttals, appealing to the rabid (and oh so thirsty) crowd here will not generate any – for example, I’m still trying to get New Here to understand the concept of language.

  28. @Blind Dogma
    “Bobby, I suggest you look into patenting those methods.”
    If I wanted to make a large sum of money, there are probably easier ways to do so. Also, I would have to be the one that figures it out get a patent within a year (and figure out that it might actually be a viable business model). Plus, there’s a good chance it might not be very useful to proprietary companies.

    “Anon, you are kidding right? If after 24 years the anti-software crowd has not put together scholarly rebuttals”
    Not quite sure why you are looking to the anti-software crowd, that’s what, the Amish and Westboro Baptist Church? Also, regarding names, being anti-something often comes off unfavorably. Perhaps they could be a pro-liberty crowd in the context of software principles. Then, we can be pro-something and use liberty or freedom, although the exact wording still needs some work. What can I say, I’m not a marketer, but someone else can probably come up with a better term, maybe even one with a nice acronym.

    As for a rebuttal, he’s only said that he hasn’t seen a scholarly rebuttal, which means that there has been (1) no rebuttal from (2) someone debating in a scholarly manner (3) that he’s seen. The debate over software patents was not as heated at that point, and the methods for people to find the arguments over them, debunk them, and get people to be aware of them were not as advanced.

  29. “Dodo birds of a same feather, it is said, flock together.”

    I couldn’t agree more, we all seem to be here once again ? Open source, being something set to fail, just odd thats all, it sure gets a lot of press here. Fact is open source is not a “business model” itself, that seems to be a huge misunderstanding here. And fact is, never has been not sorry to say. But, you see money was not the original basis …and so, nothing for open source to fail, on that basis.

    Odd, something that has given everything away has a place with one of the largest patent Corps in the world for sure. As well many Companies and Countries across the world, and did it without a dime of profit ?. Sounds like a success to me. Fact is, it is not given away, another misunderstanding. Fact is users of open source are many times contributors too.

    Using Red Hat for example, poor dodos, and those investors making no money — the dodos, but just throw money away to pay those programmers and the many others working at Red Hat. Fact is that the many user-contributors are some of those buying Red Hat support, the others not, give back in testing, bug finds …support in those forms in return for using the software “””free””” that comes without any support. Odd huh ?

    A “Business model” for open source, is not selling product with strings attached to pull it back. Those making open source a business sell support as Red Hat for one; Q: when was the last time someone you know buys software paying big money for it, and it doesn’t come with support ? So support, that is only one way to view a business model for open source, that its not the code itself that gets “sold” over and over and over again, rather, paying for the knowledge experience without control of how a given user, uses that software they are paying for.

  30. Kari-

    Actually, your answer confirms quite clearly that you are not knowledgeable. Please do try and discuss matters without cascading and comparing apples and oranges.

    First, WordPress is clearly not as successful as they could be. They have a content management system that is better than virtually all others. By giving it away for free they are locking themselves into making far less revenue than the could and should. It doesn’t sound as if you are all the sophisticated in a business sense, so allow me to point out the reality that professionals and business people know — there is only so much time in a day and no one gets rich working on an hourly basis. The way to make real money is through leverage. Having said this, it is not at all clear that WordPress is “given away” for free. But by allowing free use they are giving away the one thing the company could leverage. Not very smart as a long term business proposition.

    You say: “Giving software away and making money off software are mutually exclusive.”

    I agree completely. You cannot give software away and make money on giving it away. So either you misspoke or we are in agreement.

    Your raising Google as an example of a company that gives software away for free is wholly inaccurate. Google doesn’t give anything away. In order to use Google search you must go to Google, and the same is true for all their other offerings. So they give NOTHING away. They offer a free platform and in exchange for using the free platform you have to be willing to subject yourself to advertising. So no code is exchanged or obtained.

    Now look at WordPress plugins, for example. In the plugin situation the code and everything necessary IS given away to whoever wants it for free. That is giving software away, and you cannot make money doing that.

    -Gene

  31. New-

    It is almost comical to hear you talk about me not understanding the term “free.” Please be honest, will you. Free software is software that you don’t have to pay for. Pretty simple.

    Now you can pretend that the “free” means that it is free to be used by others as they wish, but that utopia is simply against human nature. The fact that there are companies out there that understand how to make money is why the “software should be free to be used by anyone” crowd have to have patents because otherwise they would be shut down. So I know it kills you that the “free” crowd needs patents to exist, but they do. So why not stop getting upset at those who understand business and just do your own thing? Go ahead and see what happens. But why all the animosity toward those who have the audacity to exercise rights the government gives them?

    What YOU don’t understand and those who are pursuing an open source model don’t understand is the business reality that there is a relatively small limit on the amount of money that can be made pursuing open source. No one ever wants to address the reality that Sun went from making many billions of dollars a year to making $600 million, but that is actually fact. No one ever wants to acknowledge that the open source model is a service oriented business model, which means you have to sell hours. There are only so many hours in the day and selling services significantly limits the leverage available, which limits the revenue opportunities. That is why I was completely correct when I wrote that the open source community is forcing a race to zero. Competing on price when you are selling a service is a quick way to drive the entire industry out of business and cut off funding because the pie is not large enough to attract investors.

    -Gene

  32. You can pretend that the “free” means that it is free to be used by others as they wish, but that utopia is simply against human nature.

    @Gene,

    One of the main purposes of patents is to cause “ideas” to be freely exchanged in the open so that each next Newton can stand on the shoulders of the previous one and thus reach yet higher. This free exchange of “ideas” is what “promotes” the progress of science an the useful arts.

    There is nothing wrong with people freely giving away legitimately obtained source code so that others can learn from their “ideas”.

    Receiving source code, reading it, and learning new “ideas” from it is one thing. Blindly compiling the code and using the results in an executing computer is an entirely different thing.

    We need to clarify what the open source community is saying here. Are they saying they have a right to “use” (in an executing computer) whatever source code they lay their hands on (legitimately or otherwise) or are they saying they merely wish to freely share the abstract “ideas”?

    If they are saying the second, they should have no problem with patents because patents do the same thing. They promote the free sharing of “ideas”.

  33. @Gene
    “First, WordPress is clearly not as successful as they could be. They have a content management system that is better than virtually all others. By giving it away for free they are locking themselves into making far less revenue than the could and should.”
    A few failed assumptions here. They may have the best CMS precisely because they gave it away under FOSS licensing, meaning they had a wider customer base, more feedback, and more potential contributors. If they didn’t license it permissively, they very well could have ended up with a failed product (especially if another FOSS product appeared in that niche), and as far as ‘should’ goes, I don’t think you have any authority over what the author’s goals are. Also, a successful product and a successful producer are not always the same. Thomas Edison had more economic success than Nikola Tesla, but AC won out over DC.

    “Google doesn’t give anything away.”
    Actually, Google gives away gratis copies of Chrome, Chromium, Google Earth, and at least most if not all of the core software in Android.

    “Now you can pretend that the “free” means that it is free to be used by others as they wish, but that utopia is simply against human nature. The fact that there are companies out there that understand how to make money is why the “software should be free to be used by anyone” crowd have to have patents because otherwise they would be shut down”
    The difference between free as in beer (gratis) and and free as in freedom (libre) is important, even though there is a lot of overlap. The success of FOSS is due largely to the libre nature. It can be legally modified to fit a company’s specific needs, cutting down drastically on the development costs. Many Disney classics used the same principle by being based off of works that were in the public domain, allowing them to build a massive media empire. Now, when it comes to patents, if there are no software patents, FOSS wouldn’t need any software patents to protect themselves, they can only protect themselves against practicing entities, and it makes third party redistribution and derivatives more complicated. Stopping software patents is the simplest solution here. Yes, in jurisdictions with software patents, defensive software patents are a necessary evil for FOSS, but FOSS would almost certainly be better off without the system altogether.

    “What YOU don’t understand and those who are pursuing an open source model don’t understand is the business reality that there is a relatively small limit on the amount of money that can be made pursuing open source.”
    I think most people in FOSS understand you can’t be as big as Microsoft or Apple with a FOSS based business, but that isn’t inherently a bad thing. Behemoths are not nimble, they can’t move quickly, and they are probably not a good thing for the market, which is why we have antitrust legislation. Also, I’m pretty sure that the majority of the software industry by employed programmers are working under a service model instead of a sales model, either directly for a company or doing works for hire. That’s why even before Android, Java and C# were among the most popular languages while most desktop software isn’t written in either.

    “No one ever wants to address the reality that Sun went from making many billions of dollars a year to making $600 million, but that is actually fact.”
    And that failure has been largely attributed to the burst of the dot-com bubble, a failure to divert resources from SPARC to x86, and Linux taking up a lot of their core business. Open Source everything was more of their strategy to get out of the mess than the underlying cause.

    “That is why I was completely correct when I wrote that the open source community is forcing a race to zero. Competing on price when you are selling a service is a quick way to drive the entire industry out of business and cut off funding because the pie is not large enough to attract investors.”
    See my examples in my previous post. There have been successful industries that went BELOW zero with a key product and survived, and quite a few models already exist to make software function at zero cost.

  34. @Gene

    No utopia, you carry that too far and I will say it is because of a lack of understanding on your part. I asked an honest question of you [post #3], but as yet no reply on it ?. It is almost comical too Gene, to hear the patent drums every time making the same sound over and over. I ask you to please tell why a growing number of the patent community are joining the open source community to develop and use open source ? Patents against patents Gene.

    I believe you know more about it then you are saying, because you seem to have taken aim at open source. The utopia it seems to me that you have made clear that patents are, I find hard to make it fit with what is going on beyond me and you Gene. Honest ?, can you even say that change is happing ? …as I already know and will share it with you — that the world is after all larger then the indoors of the PTO as being “utopia”.

  35. Bobby,

    I’m not sure if I was that unclear for you to be confused with Blind Dogma’s use of the phrase “anti-software” (it is pretty clear from the context that the phrase is equivalent to anti-software-patent). As to the anti/pro marketing angle that you seek – I don’t think that “politcal correctness” has anything to do with the substance of balance. Go ahead and call it what you will, but please do provide a viewpoint that addresses the points raised by Mr. Chisum.

    Let me be abundantly clear.

    The scholarly article I mention is highly critical of the logic used by those who crusade against software patents. Many of the basic tenants advanced by those who dislike patents for software are shown to fail when scrutinized.

    The author of the article is probably the most pre-eminent authority on the subject of patents, and when such a knowledgable person speaks, I would not expect his words to be ignored.

    Indeed, I am looking for well articulated (hence scholarly) views to rebut Mr. Chisum’s arguments, because I assume that to have credibility, those who would wish to prevail with a different viewpoint would have addressed the points made by Mr. Chisum at least at some point in the past twenty five years.

    I cannot find any such information. You are correct in that this might mean that I merely have not seen this information. However, an alternative could be that no such information does indeed exist and that no one has been able to refute the points made by Mr. Chisum, some twenty four years ago.

    Since I acknowledge that I do not know which is actually correct and since I am searching for a balanced viewpoint, helpful answers would lead me to such information, or express the belief that Mr. Chisum’s points have remained un-rebutted to this day.

    This really has nothing to do with how heated the debate has been. It has everything to do with the fact that even today, many of the arguments that I see are based on positions that have been effectively destroyed nearly twenty five years ago. If there is a reason to continue to base arguments on fallacy, I want to understand it. If Mr. Chisum, instead, is incorrect, I want to understand that as well. The point that Step Back enforces is that the anti-software patent crowd can easily parrot the mantra, but there is no rationale to support that mantra – at least no support that has addressed such bedrock points as Mr. Chisum makes. Twenty four years is a long time for no one to make an effective reply.

    You state “the methods for people to find the arguments over them, debunk them, and get people to be aware of them were not as advanced.

    I want to believe that you are right. Help me by showing where such arguments can be found, where such arguments debunk Mr. Chisum. Help me to be aware, rather than repeat that I am not aware.

    I am seeking any such debunking and I am looking specifically to those who would have a primary interest of being aware of such debunking counter views. I chose this forum given the combined interests of patents and software – as can be seen by the Google thread, those that dislike software patents do visit. If as you say we are more advanced now, those holding that software should not be patented should be able to provide the types of articles that I am looking for. However, I am specifically not seeking empty rants or retorts that do not address the arguments put forth by Mr. Chisum.

    Do you know of any such on-point material?

  36. @Anon

    I’m not going to take on everything; just to ask is anything new in what Mr. Chisum says ? I know well that I’m just on one side of this, and I too could provide works of those in “support” of my side of this.

    I respect Mr. Chisum’s views and opinions, but Mr. Chisum doesn’t set the thinking of the rest of the world as I believe you know. A world that is changing today regardless of what Mr. Chisum says. Mr. Chisum isn’t the first nor will be the last to have such views and opinions, it is part of what gos on in the world — patents or whatever it happens to be.

  37. @Anon
    The name thing was a bit of a joke, but naming does shape perceptions, and the ambiguity of “anti-software patents” unnerves me in a manner akin to “eats, shoots, and leaves.”
    The heat of the debate doesn’t change whether or not he’s wrong (although, changes in the software environment could), but it does mean more discussion is going on and the points raised in heated discussions tend to get addressed more than a forgotten argument, even if said argument was better. Pointing me to a link to the article in question would be a good start. All I’ve been able to locate was some articles that reference that article and some related books for sale. Because of this, I’ve only been able to get a very broad gist of what his argument was, so addressing it in a detailed, scholarly manner is going to be a bit tough. If I know his specific complaints, I have a much better chance of finding a discussion where his points were addressed. If he had good arguments, I’m sure others have used them, but knowing what he said is essential here.

    Donald Knuth’s letter to USPTO covers the technical aspects quite well and may address Chisum’s points, and it’s actually pretty easy to find on Google, and he is a renowned expert on algorithms and software. Sorry for not providing a direct link, as I’ve got a few technical difficulties at the moment.

  38. At the risk of entering the lions den of neo-religious debates about software patenting, I would like to merely note a few practical problems:
    First, definitional. Not that many so-called “sofware” patents areactually CLAIMING software per se. Most are really trying to claim business methods, controlling of machines, controlling of GUI’s etc.
    Secondly, practical problems in PTO [and thus jury] examination of such claims for statutory 35 USC 103 unobvious to one of ordinary skill in the software art, due in part to more difficult prior art searching and to the assignemen of many such software-using patent applications in PTO art units lacking software expert examiners.
    Copyright protection for software is very important, but it does not protect any unobvious inventive ideas that can be written in different software.
    But at least any sofware patent that can be characterized as a business method has had since 11/99 an additional unique statutory prior invention even with secret prior use defense against such patents – 35 USC 273.
    Finally, learn live with software patents and stop academically fanticising their death – with 8 out of 9 current Supreme Court justices in Bilski, and Congress, unwilling to kill it, it is not going to happen.

  39. Bobby-

    And I am sure you will agree that Knuth doesn’t set the tone or speak for everyone either, correct? Here is a link to this infamous letter:

    http://www.pluto.it/files/meeting1999/atti/no-patents/brevetti/docs/knuth_letter_en.html

    To the extent he or anyone else says or thinks software is math they lose immediate credibility because software is not math. Software is a set of instructions that tell a machine how to operate. The anti-software patent zealots seem reasonably intelligent, but for the life of me I cannot understand why a simple, universal truth is so difficult to accept.

    To put it as succinctly as I can, Knuth is wrong. He says: “All data are numbers, and all numbers are data.” That on its face is ridiculous.

    He also says: “When I think of the computer programs I require daily to get my own work done, I cannot help but realize that none of them would exist today if software patents had been prevalent in the 1960s and 1970s.”

    That is the type of logic that is spewed by those who choose to debate unfairly and have no evidence to support what they are saying. What he is saying is (1) not true and (2) cannot be proven. This is as ridiculous as the current defense of the $1 trillion stimulus package by saying “it could have been worse.” Of course it could have been worse, but it could have been better and almost certainly would have been better without failed government intervention. But there is no way of proving either, so the “it could have been worse” or “it would have been worse” logic is the same as no logic at all.

    I suspect Knuth meant well, but to ignore the reality that software is a series of instructions that directions action and as a whole a software program is far more than just mathematical equations shows a tremendous bias and lack of intellectual honesty.

    -Gene

    -Gene

  40. New Here and Bobby,

    I am not looking to hold a debate on what Mr. Chisum said (and with no intended disrespect, certainly not a debate with either of you in particular). I am not looking for either of you to put together a response for this blog. New Here, – I am not looking for any such arguments for “world changing” – whatever that means.

    I am looking for an on-point response to something written twenty four years ago that defeats nearly every logical argument that I have seen from those who do not like software patents.

    Bobby and New Here , one of the key concepts in law is “authority”. Authority grounds the discussion and validates points of view. One of the problems with blogging is that any old argument is made and there tends to be cross talking and denials of position. When I generally use the term “scholarly rebuttal”, I use it in the sense that the points and counter points are made in an authoritative sense – once a point is made with authority, the other side must accept it, or show explicitly and convincingly why that authority is incorrect and should be overturned or does not apply as the first position would indicate. Mr Chisum’s undestanding of patent law is one such authority – and the notion that “changes are happening” is an acceptable argument is absurd and such will not make a balanced view.

    You see, I want to hold a balanced view – but I refuse to hold a view that cannot overcome an authoritative position based on mere “but I say so” types of repetitive arguments. Especially when so much of that repetition fails for the same old reasons. The “say it often enough it becomes true” philosophy is not acceptable.

    Bobby, as to the actual document, I provided a cite to it (which I actually found by Googling the IPKat information) and I used a legal resource (actually Lexis rather than Westlaw) to retreive the article. I cannot give you a link to that path – your local library may be able to obtain a copy for you. Nonetheless, as I mentioned I am looking for a scholarly rebuttal – one that would hold up to scrutiny – rather than an uninformed opinion of the Chisum article.

  41. the reality that software is a series of instructions

    That’s where I lose track of the debate. Yes, software is instructions for performing a method by computer, but why should the instructions themselves be patentable? Software is one level of abstraction higher than actually carrying out the method. When a computer runs the software it’s easier to see how the computer might be practicing a patentable method, but as long as the instructions just sit there on a computer-readable medium, how is that any more statutory than the enabling patent specification itself, or the instructions on a pill bottle?

  42. I’m pulling some “scientific” hairs of mine out by their roots as I gasp for some appropriate, but polite thing to say to Professor Knuth regrading his 1994 statement:

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

    (see again: http://www.pluto.it/files/meeting1999/atti/no-patents/brevetti/docs/knuth_letter_en.html )

    What can I say?

    I’ve heard Jack Kennedy talk about the moon and I’ve met many scientists, but sir, with that statement you are no scientist? (–And neither is anyone who subscribes to that absurd statement.)

    In the beginning of his epic tome, Road to Reality, physicist Roger Penrose sketches out a clear distinction between the mathematical theories that are dreamed up by men and what the actual universe (the thing that reality-based “scientists” try to understand) is and how that actual universe operates.

    A true “scientist” understands that the Big Bang (or whatever newer understanding of that event horizon is) came first and then atoms, with nuclei and electrons, evolved to be what they are without the help of any man-made “mathematics” that came much later. The electrons and other parts of the matter-energy fabric will do what they do irrespective of what man-made “mathematics” are dreamed up in a feeble attempt to understand the essence and the behaviors of said electrons (photons) and other parts of the matter-energy fabric.

    If the term, “computer scientist” means to you, someone who operates in a realm completely divorced from the “physical laws of the universe” then you and I speak completely different languages. Under my definitions that person is no “scientist”. He may be an insane religious fanatic. But he is no “scientist”. Just cut off some of that there “oxygen” stuff from his personal “operating system” for about 5 minutes or so and we’ll see how long his divorced-from-reality theories last. (This a thought experiment only, of course. I do not intend for any of you “computer scientists” to actually carry this suggestion out. So please, do not actually do it.)

    With that said, we “patent practitioners” are not interested in writing patents that are directed to the meta-physical and detached from reality world that you “computer scientists” apparently operate in if indeed you all agree with Knuth’s (blessed be his name) statement that “An algorithm is an abstract concept unrelated to physical laws of the universe.” The only algorithms we are interested in, are the ones that are going to be actually practiced by real persons in this real world.

    Given that, we have no problems with one another.
    You go ahead and keep operating metaphysically in your meta-physical world.
    We will try to restrict our operations to this, Road-to-Reality world.

  43. IANAE,

    You are being too literal: “how the computer might be practicing

    Computers do not practice. Computers are configured.

    It’s easy to get lost when that is what one wants to do.

  44. “Computers do not practice. Computers are configured.”

    Yeah, yeah. Nitpick away.

    You know the distinction I was making. It’s between the software coder/vendor as infringer and the end user as infringer. It’s between writing down the steps of the method and performing the steps of the method.

    It’s easy to get lost when that is what one wants to do.

  45. ***********
    Actually, your answer confirms quite clearly that you are not knowledgeable. Please do try and discuss matters without cascading and comparing apples and oranges.
    ***********

    I admit it. I’m unknowedlgeable. I don’t have the knowledge to tie my shoes. I don’t have the knowledge to run, much less walk. I’m not knowledgeable enought to identify the difference between black and white. I don’t have the knowledge that the universe provided the good people of this earth. Wait, knowledgeable about what? You keep repeating that and not specifying the item I’m unknowledgeable about.

    ***********
    (1) First, WordPress is clearly not as successful as they could be. (2) They have a content management system that is better than virtually all others. (3) By giving it away for free they are locking themselves into making far less revenue than the could and should. (4) It doesn’t sound as if you are all the sophisticated in a business sense, so allow me to point out the reality that professionals and business people know — there is only so much time in a day and no one gets rich working on an hourly basis. (5) The way to make real money is through leverage. (6) Having said this, it is not at all clear that WordPress is “given away” for free. But by allowing free use they are giving away the one thing the company could leverage. Not very smart as a long term business proposition.
    ***********

    With respect to (1) sentance: That’s a conclusory statement. Where’s you support? Please avoid conclusory statements or theories.
    With respect to (2) sentance: Are you sure it’s better? I heard somewhere that the White House uses a different CMS. Another conclusory statement from you.
    With respect to (3) sentance: That’s a third conclusory statement. Can you compare and show it with relation to another product?
    With respect to (4) sentance: I agree, no one gets rich by being a slave. It’s obvious common sense.
    With respect to (5)-(6) sentance: Actually, a lot of companies are going with the “Free-to-Play/Use” (FTP/U) model. Why? They aren’t providing software but a service of supporting the software and possibly selling ‘extended’ features creating ‘niche market’ for individual developers. Examples are of the ‘marketplace’ in Android. The ‘themes’ in WordPress. The ‘Fedora’ versus ‘Red Hat’. There’s plenty of examples. In other words, you could say they ‘leverage’ the ‘support’. The only difference is that the ‘support’ compounds iteself because the same support can be provided to multiple companies – easy money (Sort of like compounding interest).

    ***********
    You say: “Giving software away and making money off software are mutually exclusive.”

    I agree completely. You cannot give software away and make money on giving it away. So either you misspoke or we are in agreement.
    ***********

    *iiiiinggggg*. My ESL (I blame the ‘English Second Language’ and 5 a.m. posting.) owned me right there (That is, if that is what I wrote). In any case, what the meaning was (And could be figured out – which you did for the most part) is:

    GSA = Giving Software Away
    MM = Making Money

    (1) For Mutually Exclusive situation:
    P([GSA] or [MM]) = P(GSA) + P(MM)

    (2) For non Mutually Exclusive situation:
    P([GSA] or [MM]) = P(GSA) + P[MM] – P([GSA] and [MM])

    In (2) the part that says ” – P([GSA] and [MM])” shows is the existance of a double intersection. Something not existant in a Mutually Exclusive situation. What does a double intersection mean? It, literally, means you’re taking into account the possibility of both events happening at once. Clearly, (2) is true because there exists at least one entity (e.g. WordPress) that gives software for free and makes money. Google gives software for free and makes money too. Therefore, (1) is false. That is, making money and giving free software are not mutually exclusive.

    ***********
    Your raising Google as an example of a company that gives software away for free is wholly inaccurate. Google doesn’t give anything away. In order to use Google search you must go to Google, and the same is true for all their other offerings. So they give NOTHING away. They offer a free platform and in exchange for using the free platform you have to be willing to subject yourself to advertising. So no code is exchanged or obtained.

    Now look at WordPress plugins, for example. In the plugin situation the code and everything necessary IS given away to whoever wants it for free. That is giving software away, and you cannot make money doing that.
    ***********

    Android is released under the Apache License. You can see all of the code on your own and compile it, modify it, and use it without a need of submitting those changes/updates to the open source community. If that’s not free, please tell me what is. That breaks your theory that “Google doesn’t give anything away”. You sort of set yourself up with that one by stating *anything*.

  46. Kari-

    I’m growing tired of this babble. Every time you comment you use a different e-mail address and spoofed IP. After this if you want me to continue to debate you will need to come clean and let us know who you really are.

    You keep asking what you are not knowledgeable about. It is really self evident. Your answers demonstrate an acute lack of understanding of basic business, the law and software in general. For example, you seem incapable of understanding the difference between giving away software and allowing for it to be used and deriving income through other means.

    You then said: “Android is released under the Apache License. You can see all of the code on your own and compile it, modify it, and use it without a need of submitting those changes/updates to the open source community. If that’s not free, please tell me what is.”

    As everyone can see, above you were talking about Google search and it being ridiculous to suggest that Google charge for search. Defeated on that logical line you then act as if we were talking about something entirely different. That is not debate, that is childish.

    So, if you want to continue with me you need to come clean with who you are. Debating an anonymous individual that presents moving target logic and who thinks they know things they clearly are unfamiliar with is just a waste of time.

    -Gene

  47. @Gene
    “Software is a set of instructions that tell a machine how to operate.”
    Instructions can be mathematical, and even many of the elements that might be in the gray area, such as conditionals, booleans, characters and strings, appear in math problems given to children, like this:

    Pick a number between 1 and 10
    Multiply by 27
    Divide by 3
    Get the sum of the digits
    Subtract 3
    If the number is 6, print “Software is math.” below
    Otherwise, print “Software is not math.” below
    Print the number of times the letter “t” appeared in the printed statement.

    This seems like math to me, and something similar to this was in my math book and given to me during math class, so if it isn’t, then I blame the educational system for giving me too broad of a definition of ‘math,’ and presumably Knuth and many others were mis-educated in a similar manner. Even so, I would think this would at least be ‘a series of mental steps.’

    @Step Back
    We are faced with two possibilities. Either Knuth has been insane for over a decade, or he means that 2+2=4 in Newtonian physics, Einstein’s model, and string theory, whether you are using a TI-84, ENIAC, or your fingers and brain, and thus 2+2=4 is not tied to a specific implementation, making it abstract. Also, if you want to take things to the quantum level, nothing would ever infringe a patent.

  48. This seems like math to me

    @Bobby,

    The Earth seems flat (and crowded) to me.
    The Sun seems to rise in the East and set in the Pacific (to me).

    But what it “seems to me” to be and what it really is, are often two different things.
    This is where “science” comes in.

    With that out of the way, you and Dr. Knuth (Blessed be His name) are free to drink as much Kool-Aid as you each please and to believe in whatever shadows you see dancing on your Plato’s cave wall.

  49. @Anon

    Oh please ! I asked a few questions and state an opinion or two, and you over react so !
    So you believe this letter crushes everyone that is against software patents ? Dream on !

    One damn letter, with all respect, from one person doesn’t mean the argument is over for those against a broken patent system, out of control, handing out tons of questionable software patents. You think it is that is your right to think so. I have provided many links to the news of what is going on — you don’t believe it ? What else is new form the patent world ?

    If not for the open source flame-bait I wouldn’t be saying a thing to you, and as for some 24 year old letter that btw, I knew about more then 15 years ago . Again, whats new about the reaction to change ?

  50. typo:

    Omit: “You think it is that is your right to think so”

  51. New Here,

    The over-reaction is yours. I was simply being clear about what I was looking for.

    It is not that I believe that this “letter” (it is not a letter, but rather a legal journal article) crushes everyone, it is that this journal article dismantles the logic that to this day is used by so many people who do not think patents for software is a good idea.

    I find it amazing that people who write software – by and large intelligent and logical people – have such a difficult time understanding the logic involved in legal arguments. I would think that a calm and rational counter point legal journal article would have been written sometime in the last 24 years discussing the points raised by Mr. Chisum.

    You now indicate that you knew of this “letter” more than 15 years ago. Since learning of this letter, have you seen a response that deals with those points raised? From your tone and from what I can understand of what you type, it seems like you have simply ignored the letter as an inconvenient item that merely gives a view that you do not like. If that is your opinion, then it is simply an opinion that I am not looking for because I am looking for opinions that can hold muster in a legal setting. I am looking for opinions that have been formed in recognition of authority, not in ignorance of it.

    I do believe that there are such opinions out there.

  52. @Anon
    “I would think that a calm and rational counter point legal journal article would have been written sometime in the last 24 years discussing the points raised by Mr. Chisum.”
    Most programmers don’t write for legal journals, and they probably don’t read them much more than the general public on average, meaning they are likely to be unaware of Chisum’s arguments, at least knowing that said argument is coming from Chisum. They may debunk someone repeating his arguments, but addressing his arguments directly can only be done by someone familiar with the paper in question, which is a limited set.

    The closest thing I can find is a paper by Allen Newell written in 1986 in response, but I doesn’t appear to be exactly a rebuttal.
    http://eupat.ffii.org/papers/uplr-newell86/index.en.html

  53. @Anon

    “From your tone and from what I can understand of what you type, it seems like you have simply ignored the letter as an inconvenient item that merely gives a view that you do not like.”

    Ignored the letter ? no, that is why I mentioned it. Something ignored I don’t mention.

    Do not like ? well I believe we all have things we don’t like, would you agree ?

    Anon, legal arguments aren’t the only arguments. It seems the only one argument that stands as the one with the “logic” happens to be the one that supports software patents. Many for years now, are obtaining patents not for market value, but to protect themselves against other patents. What “logic” drives the patent system today that patents are protecting against patents ? Something is wrong !

    A system that is about innovation, must take responsibility when it fails. So to be clear on the threat of software patents, the threat doesn’t come from just being patents. The threat comes form the growing ideas that everything, if you can get to it first, can be patented. The failure comes down to the claims and the “filters” used to weed out the “magic words” that often lead to patent grants. “magic words” that bypass the obvious clues in a patent application that should send up a red flag. Such “magic words” push prior art into the dirt going around it and have everyone in and outside the system, fighting over things that shouldn’t be patented at all in the first place.

  54. @Anon

    Please:

    http://www.roughlydrafted.com/2010/08/14/how-oracle-might-kill-googles-android-and-software-patents-all-at-once/

    Back in 1994, Oracle testified at a United States Patent and Trademark Office hearing on software patents:

    “Oracle Corporation opposes the patentability of software. The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.

    ”Patent law provides to inventors an exclusive right to new technology in return for publication of the technology. This is not appropriate for industries such as software development in which innovations occur rapidly, can be made without a substantial capital investment, and tend to be creative combinations of previously-known techniques.

    “Even if patent law were appropriate for protection of software, due to the large volume of recently-granted software patents and the rising number of new applications, the current patent process would continue to be troublesome for the software industry. Software patent examinations are hindered by the limited capability of searching prior art, by the turnover rate among examiners in the Patent and Trademark Office, and by the confusion surrounding novelty and innovation in the software arena. The problem is exacerbated by varying international patent laws, which both raise the cost and confuse the issue of patent protection.

    ”Unfortunately, as a defensive strategy, Oracle has been forced to protect itself by selectively applying for patents which will present the best opportunities for cross-licensing between Oracle and other companies who may allege patent infringement.“

  55. Bobby,

    Thank you – I’ll take a look at it tonight.

    New Here,

    As a professional courtesy, and in all due respect: seek medical attention for your inability to actually listen.

  56. @Anon

    Enough; I really don’t want any part of whatever it is you are after.
    Thanks.

  57. Bobby-

    “This seems like math to me…”

    Are you serious? You write a mathematical process and conclude it is math? WOW, now that is news!

    Of course, what you wrote were mathematical steps. The software code that would implement these steps on a computer are not math. So if you want to conclude that mathematical steps and equations are math I am with you. If you want to take the next, illogical and incorrect leap that says “therefore, all software is math” then I am not with you.

    Why is it so hard to understand that the code that enables the process is not math? Even if you were to patent the process you described as performed on a machine you wouldn’t be preventing the use of the underlying mathematical equations or steps. The trouble with this argument is that it ignores reality, and it ignores the law. Please see:

    Diamond v. Diehr – US Supreme Court 1981 –
    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=450&invol=175

    The prohibition against patenting math would only apply if the equation used in any context would be infringing. Since the Arrhenius equation could still be used and only a single application of the Arrhenius equation in a specific process context was implicated the patent was justifiably awarded.

    -Gene

  58. Why is it so hard to understand that the code that enables the process is not math?

    @Gene

    There is your problem.
    You use the bird-song melodic noise, “code” and that noise encodes in your brain as meaning one thing.
    But the same bird-song noise, “code”, encodes in Bobby’s brain as meaning an entirely different thing.

    The two of you will keep tweeting the same tiresome “code” noise to each other forever and neither of you will ever understand that “code” is not “code”.

    Just face it. You and Bobby are not birds of a same feather. Your courtship bird songs were not meant to bring the two of you together and besides, assuming you are both of a straight male persuasion, it would be unnatural in the first place.

  59. Just face it. You and Bobby are not birds of a same feather.

    p.s. to @Gene

    Why bother tweeting with Bobby bird when you can have more fun being the Bobby bird in the below forum of open sourcers (socerers?) ?

    http://opensource.com/law/10/8/weak-case-software-patents#comment-2199

  60. Step-

    I am willing to acknowledge that we use the word “code” differently, but how is that possible? That would certainly explain a lot, but code is code and there is no great mystery as to what it is. Code is not math, pure and simple. Anyone who says otherwise is just ignoring truth out of some kind of ideological (or nearly religious) compulsion.

    -Gene

  61. Step-

    You are a brave man going over there. It is quite apparent that the author didn’t actually read the article I wrote, which is fine. The article has nothing to do with a defense of software patents. I have done that many times before. They can all laugh and joke if they like, but this article (and the unassailable truth) is about the business reality. If you are in the software space and you do not have patents then you are extraordinarily irresponsible. So whether software patents are good, bad or ugly doesn’t matter in terms of business. Those in the industry need them or they will eventually suffer the consequences of their ideological choice. But since this is America, everyone has the right to fail, unless of course you are an enormous entity that has acted with careless disregard to acceptable business practices.

    -Gene

  62. of some kind of ideological (or nearly religious) compulsion.

    You might even say dogmatic compulsion.

  63. Hold on a second BD. “DOGMATIC” is a trademark of the Dogmatic Automatic Doggy Door Corporation. You can’t use that word.

    (Just kidding. I hope.)

  64. You are a brave man going over there.

    @Gene

    –or a foolish troll boy.
    I had good clean fun with them anyway.

    I was defending your honor on account of what they said:

    Quinn is a patent attorney. The only argument he is concerned about is whether eliminating software patents would be good for him personally. Of course the answer is ‘no’ because it’s one less thing for him to litigate about. Anything else he says is just so much hot air. He’s hoping that there really are a lot of “buffoons” out there who will accept what he’s saying at face value.

  65. Thanks Step! Obviously they didn’t care much about getting the facts straight. I haven’t litigated in years, although the recent case where I was sued got my litigation juices flowing in a big way. Maybe in the future! :-)

    Carry on!

  66. @Gene
    I wrote ‘a set of instructions that tell a machine how to operate,’ which is what you claim software to be (humans are machines, after all). You claimed that my instructions were indeed math. Giving those same instructions in another language would still be math, whether that language is German or Java.

  67. Bobby-

    You say: “Giving those same instructions in another language would still be math, whether that language is German or Java.”

    And that is where you are dead wrong. You are wrong on the facts and wrong on the law. Did you even read the case I provided a link to? If you did you would realize that I am correct and you are incorrect on the law.

    By the way, how does “2+3=5″ compile? I suspect it is pretty difficult to get that equations to compile, but then again we all know that and this is just further proof that I am right and you are wrong, but I can’t wait to hear your response.

    -Gene

  68. @Gene
    “And that is where you are dead wrong. You are wrong on the facts and wrong on the law”
    Are you saying that my instructions were not ‘a set of instructions that tell a machine how to operate’? They were clearly instructions, and they were clearly intended to tell a human machine how to operate.

    I’m familiar with Diamond v. Diehr. It held that using software and mathematical algorithms as part of an invention does not make an otherwise patentable subject matter not patentable. ‘On a computer’ isn’t really a ‘novel and useful’ application. Also, ‘on a computer’ raises the point raised by IANAE about at what stage infringement occurs, and thus who the infringing party is. If infringement doesn’t occur until the computer is assembled or use, software vendors themselves are off the hook. OEMs can catch trouble, but there are some fairly easy workarounds. If it’s end users that are the infringers, then patent holders face less financially viable lawsuits than the RIAA.

    “By the way, how does “2+3=5? compile?”
    All software is math does not mean all math is software, just as all squares are rectangles doesn’t mean all squares are rectangles.

  69. Bobby,

    Thanks for the link- there are some good early articles that I will review in more detail. I hope that it is better than some of the more recent stuff that the site also lists as the slide into emotion-driven, this happened to me so beware tends not to be too valuable for the objective balancing project I am working on.

  70. All software is math … all squares are rectangles

    @Bobby

    Why with that deep logic you can say that the entire Universe is math.

    Here’s why.

    There are an infinite number of unique numbers.

    You can therefore assign one unique number to each unique aspect of the entire Universe and thus reduce the entire Universe to a mere set of unique numbers (a.k.a. that there maths stuff).

    And besides, since software is part of the Universe, the above “proves” that all software is just math.

    ______________________________
    It is left to the reader as a homework exercise, to use sound logic to sound out why the above is logically false.

  71. @step back

    I’ve made mention about the math as it applies to software before, and the unavoidable fact is that software is not pure — or just …math. The electronics, and the logic of the physical components making up a computer’s circuits, where software is only part of a “communication layer” — for the lack of a better techie term. Communication it is part physical and part electronic. One or the other alone, will not make a “computer”, or software, because without more understanding, just calling software math …is a mistake.

    Let me try to tie this together, the communication is not simple:
    Though math plays a part in all engineering, making software for a computer takes a great deal more.
    Press a key on the keyboard, and think of not only a path, but also the actions that must take place. These actions based upon a well designed “grammar” ( I know the importance of this well ! …he he he ), because a given computer does not “know” what it is going to be asked to accomplish.

    All circuits though physical, having a “logic”, are designed to carry out millions of task, no one of them being exclusive. The result of any task given to the CPU and all supporting hardware, relies upon something deeper then the syntax and/or grammar of a programming language — and the math …alone. The instructions must be able to reperisent just about anything, from pictures to search trees …in digital form regardless of any programming language. “Regardless of language” when talking about a given class of computer devices in use and not in general.

    Software provides instructions of great detail, true, yes math plays an important role, but math alone cannot provide the dynamics of what is potentially to provide the almost countless individual results that must all come together with single meanings to humans — the people that are using the computer. The hardware, the logic inside that are many thousands of “logic units” , must not only calculate numbers, but as I said at the start, communicate as well. Software — is not just math.

    I hope this is understood …well, you know me.

  72. typo: reperisent

    Was to be : represent

  73. but math alone cannot provide the dynamics

    @New Here,

    You mean to say, you mean to say, that there is “fourth dimension”? OMG. Time?
    And signals have to be “synchronized” to each other in this 4th dimension? OMG
    So that we end up with something called synchronous sequential state machinery? OMG squared !

    ;-)

  74. @Step Back
    I haven’t gotten to the point in the logical proof where I’ve shown that software is math, but it seems the argument that Gene has presented is that software is not math because it is ‘a set of instructions that tell a machine how to operate’ while he has called such a set of instructions math when interpreted by a human machine, so that particularly point has been debunked unless he debates that my example is instructions or that humans are machines.

    I’ve entertained the idea of an equation that would simulate the universe back in high school, although it’s structure would be different than what you suggest (probably more like a series of variables, coordinates, and vectors). However, it would need to operate outside of the universe to avoid having to infinitely calculate its own calculations, and the universe exists while math doesn’t, unless of course, our lives are merely a simulation of a universe being run on a computer. As for the math not existing part, which will undoubtably cause a stir. I mean that math is like Plato’s Forms. You can’t for example find a physical manifestation of ‘One’, and the Three Dog Night song doesn’t count, especially since it is itself a Form. Bonus points if you can somehow attempt to put something at least partially related to the aforementioned song into an argument not related to the discussion at hand.

    However, the main reason, free from all of the philosophy junk, that not all math is software is because not all math is instructions, and not all mathematical instructions can be interpreted by a non-human machine. Software in this argument would be a subset of math, like algebra, calculus, arithmetic or statistics. ‘x=y^2′ is not arithmetic, but it is a mathematical equation. It also isn’t mathematical instructions until something like ‘calculate the value of y when x is 7′ or ‘graph the value of x=y^2 on a Cartesian plane’, but once these are added, they are instructions and it can be implemented in software (when given proper syntax’).

  75. Bobby-

    You say: “All software is math does not mean all math is software, just as all squares are rectangles doesn’t mean all squares are rectangles.”

    I am not even going to pretend I understand what you are talking about. Sure, all squares are rectangles doesn’t mean all rectangles are squares, which is what I think you meant. But this is hardly a response to my asking you how 2+3=5 can compile. So you essentially are presented with irrefutable proof that you are incorrect and then turn into a philosopher.

    Believe what you want, but software is coded in a language and that language is not math. The language defines a set of instructions that are to ultimately instruct a machine what to do, or in other words the code defines a process. The code can be copyrighted and is entitled to first amendment protections and copyright protections because it is NOT math, but rather because it is expressive. The resulting functionality as brought to bear through a new and nonobvious process is patentable.

    Math is not patentable, and software is not math. To argue to the contrary is ridiculous and ignores the core of what software is, does and how it is written. It also ignores the reality that a mathematical equation or a series of mathematical equations will NOT compile and will NEVER direct action. The mere fact that software employs mathematical logic in terms of open and close routines and uses mathematical symbols doesn’t mean it is math. Get over it.

    -Gene

  76. However, it would need to operate outside of the universe to avoid having to infinitely calculate its own calculations

    @Bobby

    Bingo

    You get an A+ on the homework assignment

  77. @step back

    So step back, please educate all of us, and give a simple example of how software “talks to” the hardware and the hardware answers it. I would LOVE to read that from you ! Don’t include the 4th stuff, I’m not into it.

  78. @Gene

    “Believe what you want, but software is coded in a language and that language is not math. The language defines a set of instructions that are to ultimately instruct a machine what to do, or in other words the code defines a process.”

    I agree, my argument about software patents has never been only about the math BS. The danger of software patents as you point out, is “defines a process”. These processes are now coming from everyday life and business. What is being called innovation today, is someone finds a comb and claims has found a use for it. Yet, after the PTO does it thing, millions of people are an infringer, like magic. Its a real joke !

  79. please educate all of us

    @New Here

    You must have me confused with someone else.
    I didn’t say that.
    Don’t know who you “all of us” are.
    But if you insist:

    Software to Network Printer: Please add this task to your spool and confirm, PRINT(“Hello World”);
    Printer to Software: Confirmed, task is added

  80. @step back

    Please read #73 for what it is, you did say.

    “Software to Network Printer: Please add this task to your spool and confirm, PRINT(“Hello World”);
    Printer to Software: Confirmed, task is added”

    WHAT …Its a joke right ?

    sb, there is an interaction between software and hardware, that they “talk to” one another. I am asking you to tell what that really is. Here is a clue, its not just math !

    At #71 I did avoid going too techie, but I will add this here:

    A great deal more is going on inside a computer that is running software. It is not just software that is in control. The “process” Gene mentioned doesn’t cover the whole picture just saying it is “created” by a programming language. Though true to a point, but the programming language then, would have to be “aware” along with the computer – of all processes someone may want to “create” and run — for it to be that simple. It is not, because computers aren’t designed as ABC blocks you just stack up using nothing more then your own “logic” or some notion of it.

    So sb, take us on one of your 4D experiences, and do tell what the steps are from compiler to instruction, in software. That software after, talking that “process” with the computer that understands it. A clue, real software never says please. This is no game make no mistake, there is an answer ! Do you know it, is the question. I see before an argument about “math” and/or “logic” someone to stand in a Court room could be made a fool, if unable to make an argument based upon the “math” and “logic” they know what they are talking about.

    You can pick on my English, but what I am asking you here, I know very very well !

  81. @Gene
    My apologies on my square-rectangle error, but you got my meaning correctly anyway.

    Mathematical equations and mathematical instructions are not the same set, and something doesn’t have to cover the entirety of math to be math. Arithmetic is not calculus, so I could give a calculus problem that arithmetic can’t solve and similarly suggest that arithmetic is not math using your reasoning. The claim is that software is math, not that software is math AND math is software.

    You did not give mathematical instructions in your case, so they can’t be used to instruct a mathematical process. A human can’t ‘solve it’ without instructions either, such as ‘evaluate whether 2+3=5 is true’ (incidentally, Wolfram Alpha assumes this is what you mean when you enter ‘2+3=5′ and thus solves it automatically as if it were instructionst) If you change it to that, you can trivially make a computer do the same thing via software. You could compile my example of mathematical instructions with minimal modifications roughly equivalent to changing to a different spoken language (that would be human readable and solvable by someone with appropriate experience), and possibly with little to no modifications if there was an appropriate ‘natural syntax’ language. If the instructions are mathematical when read by a human, why would they not be mathematical if the same instructions are read by a computer?

    Proving that some software is not math entails giving an example of software that is not math because math is the superset. You gave an example of math that is not software, which proves some math is not software, and I will agree that not all math is software. You can’t use math examples to prove that software is not math. You were closer with your ‘give an answer to the html of ipwatchdog.com’, but in order to be a process, you would need additional parameters for it to be process. For example, ‘given X by Y screen resolution page position Z, A,B,C set of fonts, history H and mouse position M, the w3c standard for XHTML 1.0 transitional and CSS 2.0, and ruleset E for handling syntax errors, render ipwatchdog.com.’ This is what your browser does, and a person could do this as well if given enough time and knowhow. The fact that it does not have a single, numeric result doesn’t make it not a mathematical process, as even elementary school math problems can have ‘Suzie’ and ‘Jane’ for answers. The ability for everything to be done by a human makes rendering a webpage certainly reducible to ‘a series of mental steps,’ which was ruled as unpatentable in Gottschalk v. Benson, even if you don’t accept those steps as mathematical.

    Regarding the copyright issue, it’s not math that can’t be copyrighted, it’s facts, which is not the same set as mathematical instructions. Things like 2+3=5 are mathematical facts, and a simple and obvious collection of facts can’t be copyrighted, but the specific expression of a creative collection of facts can be, such as in a news broadcast. An ordered multiplication table couldn’t be copyrighted (in the US, anyway), but I’m fairly sure the series of problems and their answers in a McGraw-Hill book could be, assuming that there isn’t an obvious pattern to the problems themselves, and so could a multiplication table that was sufficiently creative by the choices of inclusion and exclusion. The individual equations themselves would not be copyrightable, but the specific implementation of them together would be.

  82. Bobby,

    Under your understanding and definitions, can Math be copyrighted?
    (Yes/No and why)

    From your discussion at 81, I gather that your answer would be: it depends.

    Not a very satisfying answer, is it?

    The fact that you are forced to contort such an answer speaks volumes. And by the way – there is no conceptual difference between those contortions used to distinguish maths you can copyright and those you cannot and the justifications put forth that certain maths (obviously not the term a pro-software patent proponent would use) can be patented. The contortions can be abstracted from one domain of IP protection to the other based on the ground rules of what each domain protects.

    In fact, to borrow Gene’s catch phrase, it is intellectually dishonest to try to “own” any subset of Math if you believe that certain subsets should not be patentable (after all, no one is claiming that you can get a patent on all math – only a certain subset of applied math).

    As Step Back and others have pointed out – the Ultra-Maths definition basically covers everything. It reminds me of the pun: If you owned everything in the world, where would you put it all?

    And btw – there are methods to take care of the “it must be outside of the universe” problem, so I would only give a B to that answer.

  83. @Blind Dogma
    It’s similar to copyrighting a recipe. The exact presentation of the recipe can be copyrighted, but you can reword the recipe and be exempt from the copyright of the recipe, since it isn’t the recipe itself that is being copyrighted, but an expression of it. A collection of recipes can also be copyrighted, just as an original collection of expressions of mathematics could. A patent could possibly cover the recipe, but trade secrets generally work better.

    To address the difference, copyright covers original expressions in a fixed form and not the ideas they are expressing, and what makes something not copyrightable is being unoriginal, such as an alphabetical telephone listing, although the range of fair use and other exemptions could be fairly expansive on works eligible for copyright when facts constitute a substantial portion of the work. With patents, mathematical algorithms are to be considered prior art itself even if it is new, as in Parker v. Flook.

    I’m curious as to how you avoid the ‘outside of the universe’ problem. I don’t think i’ve heard such a solution, but I’d be quite interested.

  84. Bobby,

    You manage to not address the core point of my message: “it is intellectually dishonest to try to “own” any subset of Math if you believe that certain subsets should not be patentable

    I have yet to hear a credible answer from any “anti-software patent – copyright is good enough” believer.

    And in the parts that you do address, you make critical errors:

    A patent could possibly cover the recipe, but trade secrets generally work better. ” – using “recipe” as a placeholder – trade secrets do have their place – but so do patents. In fact, the government (for the people) has an express interest in promoting the use of patents over trade secrets.

    You also make errors in your projections of the holdings of Case Law (Benson, Flook) – the “considered prior art even if new” is dicta, not holding. And both cases must be read in light of Diehr, as emphasized in Bilski.

    The answer to the “outside of the universe” problem lies in chaos theory, but I’d be quite interested in “owning” subsets of math idea.

  85. Bobby-

    You are proving my point beautifully. You say:

    “You could compile my example of mathematical instructions with minimal modifications…”

    That means there is human interaction required and that human interaction means there is patent eligible subject matter if the invention is new and nonobvious. It also means that software is not math if there needs to be modifications akin to translating into a machine readable language.

    You say: “The ability for everything to be done by a human makes rendering a webpage certainly reducible to ‘a series of mental steps,’ which was ruled as unpatentable in Gottschalk v. Benson, even if you don’t accept those steps as mathematical. ”

    Simply not true. Your premise is that since a person could do it if they had unlimited time and could live 1000 years and spend every waking moment that means that software is a mental process that cannot be patented. Ridiculous. Software is not a mental process. You know how I know? Because it runs on a machine and a mental process runs in your head. So the fact that it could be done with great amounts of effort by pen and paper versus being done in seconds (or faster) on a machine thanks to software is exactly why software is and should be patentable. Software represents enormous innovation, and to pretend that code written to instruct a machine is a mental process is to ignore all evidence to the contrary.

    Your understanding of copyrights is close, but it is not the mathematical equations that are copyrighted and not the implementation of them. Implementation of equations could not be copyrighted because those things with a function are not copyrightable. What is protected in the McGraw-Hill book is the compilation. A compilation, even if put together using public domain materials, can be copyrighted as a compilation. You could remove the unprotected constituent parts, but you could not copy the expressive elements, which is typically embodied in the overall work.

    -Gene

  86. @New Here

    I did not realize English is not your native language.
    You are doing very well in expressing yourself in English.

    Perhaps the fault is mine in being somewhat ambiguous.
    I do not believe you and I are “debating” over anything.
    It seems that we are in agreement that modern computers have things called, clock signals in them and computer operations are synchronized according to the clock signals. Also the communications between multi-threaded routines can include handshakes, token passes, etc. It’s not math. It’s communications protocol as well as instruction execution protocol. This is what coordinates operations over time (the 4th dimension, t, which combines with x, y and z).

    I do not understand what question you are posing in your discussion about conversion of source code into executing code. Computer programs do say, please; and sometimes the answer is; sorry, no can do; printer is out of paper.

  87. @Blind Dogma
    “You manage to not address the core point of my message: “it is intellectually dishonest to try to “own” any subset of Math if you believe that certain subsets should not be patentable”
    It’s not really my belief. It’s my understanding of the law. I understand that you can own the copyright to a song, but you can’t patent a song, or as far as I know, any pure application of music composition. Pure math without a novel application is not patentable, and I don’t see ‘on a computer’ as novel.

    “trade secrets do have their place – but so do patents. In fact, the government (for the people) has an express interest in promoting the use of patents over trade secrets.”
    I understand that, but I’m just saying that trade secrets are generally the preferred form of protection for recipes, and you could argue that society isn’t suffering too much just because we don’t know the exact formula for Coke or KFC’s perfect ratio of 11 herbs and spices.

    @Gene
    “That means there is human interaction required and that human interaction means there is patent eligible subject matter if the invention is new and nonobvious. It also means that software is not math if there needs to be modifications akin to translating into a machine readable language.”
    I’m saying that from the form it is in now, there would be human interaction needed, and I even suggested that it would be theoretically possible for it to be run exactly as is. A javascipt version of it would be reasonably human readable and convey to a reader familiar with the language the same instructions as my example, and the ability to solve it in a reasonable time.

    You do touch on a good question though. Where should a software patent apply if we hold that software patents are valid? Should it apply to compiled executable code, source code, code that is not on a computer, code that is in a compressed form that isn’t directly readable, code that is in a compiled form but needs to be concatenated to run, a tutorial on how to write code using a patented method?

    “So the fact that it could be done with great amounts of effort by pen and paper versus being done in seconds (or faster) on a machine thanks to software is exactly why software is and should be patentable”
    You seem to be overlooking the very important role of the machine in that equation. If there was a slow enough machine and/or a fast enough person, the person could be faster than the machine. If I run existing software on a 80386 and an i9, is that patentable? The software implementation in Benson was probably faster than a human doing it by hand, but that doesn’t mean it wasn’t just math or mental steps, which was why the rejected it.

    I didn’t say the equations were copyrightable, but rather, a specific, creative, and original expression of different facts was. I would think the wording of a word problem would be weakly copyrightable like a recipe, and maybe some other similar elements.

  88. Bobby,

    Are you really going to make me chase you?

    It’s not really my belief. It’s my understanding of the lawstill evades the core point of my message.

    Let me put a realization (that should have occurred to you) to you rather bluntly: Math is or is not suited for IP protection because either someone can “own” a portion or they cannot – there is no such thing as a middle ground here. And yet, you have (most) all of the people vehemently condemning “software patents” being the same people smugly proclaiming that copyright is good enough protection. These people are blind to the dogma they follow, refusing to follow the logic to its cold certain end.

    The cop-out of “it’s my understanding of the law” is exactly that – a cop out. The arguments are not that “software patents are illegal”, the arguments are that “software patents >b>should be illegal”. You’ve run from the moral question, trying to hide behind a legal question – and that legal question offers you no hiding spot.

  89. @step back

    Please !

    Yes, I was at #71, in agreement that software is not just math. I took the long way to say it is all. I will say it again, to say that software is math (or just math) is a mistake ! Again the long way at #71, I did try to make it understood that computers must do more then just calculations (math), they must return results that have meaning to the people (humans) using the computer. Math alone I’m sure you will agree, cannot do that alone.

    Gene’s process is a good case, because it is the building block to giving meaning. A description of a “process” alone — though would be in a programming language, is not enough. The programming language builds the process that a description is gained from the design (blueprint) of the process before it is coded. After it is coded, and following through (the blueprint) the process has the given meaning in forms of the results. For software this takes a great deal more then math to accomplish. I think you will agree ?.

  90. @Blind Dogma
    Am I not allowed to make purely legal arguments? SCOTUS has yet to clearly define the rules for software patents, and even if they did, you could argue that they are wrong from a legal perspective, which is apparently what Chisum did. I don’t think patents or copyright are a matter of morality, but rather a matter of practicality.

    Not all people objecting to software patents object to them simply because they seem them as math. Not all people who object to software patents approve of copyright or patents in general, the current system, or either of them covering software. There are multiple positions that can ultimately hold the same view on whether or software patents are valid.

    As for a difference between the two, software copyrights do not interfere with authors who independently create, while software patents do. That difference itself is a significant difference in the levels of interference that could be the difference between what is and isn’t acceptable.

  91. Am I not allowed to make purely legal arguments?

    Bobby,

    You are “allowed” to do anything you want. If you want to run and hide from the cold logic or your very own arguments about what is Maths, you can do so. You won’t mind though, if I draw your attention to the fact that even your own logic points to the fallacy of your conclusions, do you? I am allowed to poke holes in your arguments, am I not?

    Your awkward, back-peddling and stumbling, trying to throw in new additional non-math arguments and “but there is a significant difference” type arguments tells me that you haven’t, before now, thought your position all the way through.

    So tell me once again Bobby – how is it appropriate for anybody to “own” (even in some allegedly diminished capacity) maths, or a subset of maths, that should belong completely free to everyone? Did some magical processing of the subset of maths change them so that now it is OK for individuals to limit those universal maths, or are you retreating from your position that “software is math”?

    You will find that you cannot have it both ways. Let me know when the full realization hits you.

  92. @Blind Dogma
    You are prescribing to me a position I didn’t take, at least not in this argument. I didn’t say ‘ownership of math’ is bad, but that our patent system doesn’t allow it. In certain limited contexts, copyright allows you to protect an expression that consist of nothing but math. Whether this is practical, ethical, or moral is a different question. Maybe that is inconsistent, but it’s not my inconsistency, it’s the inconsistency of the legal system.

  93. No Bobby – it is precisely “your” inconsistency, because it is the basis of “your” argument.

    Also – which position is it that I am prescribing to you that you have not taken?

    That software is maths?
    That software should not be patent eligible because it is maths and thus belongs to all people?

    (again – the argument is not that software patents are illegal – the argument being floated by the anti-software patent crowd is that they should be illegal).

    The faster you run away, the quicker everyone can see that you are running.

    Now it appears that you are saying that ‘ownership’ of maths that belong to everyone – or at least some type of ‘ownership’ of some subset of maths that belong to everyone is not “bad” (whatever that means). And once again, you don’t address the point of my statement way back at post 82.

  94. “That software should not be patent eligible because it is maths and thus belongs to all people?”
    I did not say that. I said math is not patentable in our system, and that is not contended. I don’t believe I have said why. Maybe somebody just has it out for innovative mathematicians.

    “again – the argument is not that software patents are illegal – the argument being floated by the anti-software patent crowd is that they should be illegal”
    Some would argue that the current software patents are not legally valid. If Bilski had turned out with a more broad ruling, that argument would have prevailed on it’s own. That software patents should be illegal is a distinct argument, and some of them may feel that copyright shouldn’t protect software either. I’m sure some people carry a varied set of beliefs that consists of various combinations of these viewpoints.

    “Now it appears that you are saying that ‘ownership’ of maths that belong to everyone – or at least some type of ‘ownership’ of some subset of maths that belong to everyone is not “bad” (whatever that means).”
    Saying that I didn’t say it was bad doesn’t mean that I am saying that it isn’t bad. I am specifically not commenting on the moral aspect here, so for the sake of argument, I have no opinion on the matter.

  95. for the sake of argument, I have no opinion on the matter.

    Amazing how often I get that response.

    I said math is not patentable in our system, and that is not contended. ” Funny, I do believe that is not what you have been preaching – in fact, didn’t you try to lecture Gene on maths and subsets due to his webpage challenge? Here, let me quote you: “The claim is that software is math, not that software is math AND math is software. ” Bobby, you are being disingenuous. I am pretty sure that no one on the pro-software patent side has ever declared that math should be patentable. Or we could put it this way – are you now denying that you believe that software should not be patentable because it is maths? (to now claim that “I don’t believe I have said why” strains respectability.

    In your hasty exit, you are tripping over yourself. My advice is to relax, calm down, and realize that the base of your belief system has been a sham. It’s OK – the sun will rise tomorrow.

  96. @Blind Dogma
    Again, you are trying to put words in my mouth, so perhaps it is you that is running. The ethical or practical reasons behind the legal fact that math is not patentable don’t change the fact that math is not legally patentable. Even if I hypothetically believed that math patents would advance society and the state of the art, I couldn’t really argue that they are legal.

    “in fact, didn’t you try to lecture Gene on maths and subsets due to his webpage challenge? Here, let me quote you”
    I used his webpage challenge as an example of something closer to an appropriate claim for a counterargument because listing math that is not software doesn’t prove his point or disprove mine. What you quoted was a simple explanation that I was claiming that software is a subset of math. “Software is math’ and “Software is math and math is software” are two different logical statements and the difference between them is relevant to the argument. There is no emotional element to that, save perhaps the emphasis on AND to emphasize my point, but the statement itself doesn’t convey a message besides clarifications of my claim.

    “are you now denying that you believe that software should not be patentable because it is maths? ”
    From a legal perspective, pure applications of software are not patentable because they are math. My opposition to software patents is because I see them as impractical. Software doesn’t have to be math for software patents to be impractical, but if I can argue that it is math, it accomplishes my goals though legal means and it does so in a clean manner that is unlikely to be seen as changing. There are other legal means to eliminate software patents or neutralize their efficacy, and failing those, there are arguments that software SHOULD not be patentable. ‘Software is math’ is the first line of defense, and I see no reason to only have one level to my argument.

  97. Again, you are trying to put words in my mouth

    No, Bobby – the words used were yours – I quoted you.

    Then I tried to set the record straight and asked you directly “are you now denying that you believe that software should not be patentable because it is maths” – and I received a twisted answer to a twisted question.

    It is a clear sign that you cannot win the argument when you start resorting to twisting the argument rather than answering the points asked of you – now you attempt to use the “I’m not running – you are running” third grade approach. Which question am I running from, pray tell? I haven’t taken the fifth, have I? Bobby, why would I need to run? From what would I need to run?

    I don’t begrudge you “levels of defense” (even though such a statement speaks more to a dogmatic philosophy, regardless of what is actually right) – I certainly hope that your defense is better than the “no comment” fifth amendment approach to a question pointing out a basic flaw in your argument. At what level are you going to answer that basic question?

    And even as you charged Gene with misrepresenting the situation with your answer of “math is not software” to his webpage challenge, you now violate your own answer by attempting to change the discussion to a “math patents would not advance”. Funny that – no one was talking math patents. We were talking software patents. Assuming what you need to prove is not an effective argument strategy (especially after you just finished trying to show that one is a subset of the other).

    And by the way – applied math can be patentable – that is the legal state and that is not up for argument. You can have all the opinions you want to the contrary, but do not become upset when people point out the distinction between legal fact and opinion to you.

  98. @Blind Dogma
    You did quote me, but you were trying to suggest that it was anything besides a legal/technical argument. Gene was arguing that software is not math using math that is not software as proof. This is not logical. I was correcting him and explaining the fallacy behind it.

    “And even as you charged Gene with misrepresenting the situation with your answer of “math is not software””
    I did not say ‘math is not software.’ I said that ‘I did not say that math is software.’ There is a huge difference between the two that you are repeatedly mistaking, possibly because you want to make me trip up.

    “you now violate your own answer by attempting to change the discussion to a “math patents would not advance”. Funny that – no one was talking math patents. ”
    I was presenting a hypothetical situation where even if I supported patents directly on math, I couldn’t reasonably argue that they are legal. This hypothetical exists to demonstrate that my views and my interpretation of the law can be distinct.

    The supposed flaw you point out was an argument that if ‘owning subsets of math’ though patents should not occur (presumably because it is unethical), ‘owning subsets of math’ should not occur for the same reasons. I have not stated an opinion on whether copyrighting software, or even whether patents or copyright in general should occur or not. I have only stated that you can copyright expressive collections of math, which is a legal fact.

    As for applied math being patentable, I believe a more accurate description is that patentable subject matter does not become not patentable subject matter because some claims are mathematical.

  99. Bobby,

    Your dancing gives evidence of how weak your position is.

    Whether you want to own up to it or not, that is your decision. But I think you know that I know you know.

  100. Bobby, I can’t agree software is math, because I know better. Here is something I think you should read. The Abstract, and then download the pdf and read that. This from those knowing the Law makes it better yet !.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1626348

    Here is just a small part of it:

  101. Not sure why, it didn’t post — so here is the rest of post # 100

  102. The map is not the territory.

    A mathematical attempt at describing a thing is not the thing itself.

    This is not a pipe. ( http://foucault.info/documents/foucault.thisIsNotaPipe.en.html )

    Or as Homer Simpson would have more eloquently explained it: D’oh.

  103. CS Majors and programmers should be kept far, far, away from anything that truly matters. Clearly, after reviewing this debate, exchanges, and threads; these people are nut jobs. (Nut jobs = incoherent + idealistic + no-part-of-reality)

  104. @john white

    Its called flame-bait !

    Nut jobs ? …as I said, flame-bait !

    “CS Majors and programmers should be kept far, far, away from anything that truly matters.”

    Question; do you mean they should just patent ?