Forfeiting the Future Over Irrational Fear of Software Patents

By Gene Quinn
December 6, 2012

Pulling the plug and letting out the baby with the bath water is ridiculous, on that everyone can agree. What people can’t agree on, surprisingly, is selecting a path for the future from the playbook of winning plays. Time and time again any more “do-gooders” seem to want to call plays from the playbook of plays that have never succeeded. In what universe does that make any sense whatsoever? When will they realize that plays that have not worked have failed for a reason? Success is not overdue. Get a grip!

With a firm grasp of some alternate reality, critics of the patent system, and specifically the critics of software patents, would have the United States forfeit the future in favor of something that has never worked. Curtailing patent rights has never worked to produce more innovation anywhere it has been tried. The inconvenient truth is that there is no evidence that a weaker patent system fosters innovation, but there is overwhelming evidence that a strong patent system does foster innovation, leads to growth, investment from abroad and a growing more prosperous economy.  Indeed, weak patent rights virtually guarantee innovation simply won’t happen.

So what is fueling the anti-software patent hatred and ridiculous claims that software patents are somehow evil? It is a particular world-view or ideology that approaches religious zealotry.  It certainly isn’t anything that resembles factual truth or reality.

Case in point, Timothy Lee.  Lee is the “journalist” who writes for Ars Technica and occasionally for Forbes who has in the past grossly mischaracterized cases and rulings from both the United States Supreme Court and the United States Court of Appeals for the Federal Circuit in order to promote his erroneous views. For example, he actually wrote that the Supreme Court has never authorized the issuance of software patents when in fact they clearly have.  See Lies, Damn Lies and Media Hatred of Patents and Doubling Down on Egregious Attacks on the Federal Circuit.

In Lee’s recent propaganda effort against software patents he took on David Kappos, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.  Kappos delivered a speech at the Center for American Progress on November 20, 2012, in which he defended software patents.  Lee didn’t take kindly to that and basically wrote for Ars Technica that Director Kappos didn’t know what he was talking about and that the facts clearly support those who are against software patents.

Lee wrote:

Rather than engage in this empirical debate, or even acknowledge its existence, Kappos acted as though it was self-evident that stronger patents always create a larger incentive for innovation… With all due respect, Mr. Kappos, we do have the facts. And they support the position of software patent critics.

Lee’s familiar myopic view of a world underlies his zealotry.  It is curious how anyone even casually associated with the industry could believe, let alone say, that the facts support the software patent critics.

According to Sacha Wunsch Vincent, Senior Economic Officer at the World Intellectual Property Organization (WIPO), Innovation is a central driver of economic growth and development and generator of better jobs. It enables firms to compete in the global marketplace and to find solutions to technological and economic challenges.” Vincent goes on: “in high-income countries, innovation – the act of creating new products or processes – accounts for as much as 80 percent of economy-wide growth in productivity. At the firm level, those that innovate outperform their non-innovating peers and drive economic growth.”

This is nice to say, but what is the proof? Is there really a correlation between high-income countries and patents? Yes, indeed there does seem to be such a correlation.

The World Bank classifies countries based on gross national income (GNI) per capita. High income countries have a GNI per capita of over USD 11,456; upper middle income of USD 3,706 – 11,455; lower middle income of USD 936 – 3,705 and low income of USD 935 or less. Where do you suppose you see the most patenting? If patents inhibit economic growth and opportunities then you would expect to see a higher percent of patents in the low income economies, but you don’t oddly enough.  You find that the overwhelming majority of patent activity is in the high-income economies — upward of 85% of patent activity is in high income economies in fact. With that being the case how can anyone with a straight face argue that patents get in the way of economic development? High-income economies where patent rights are strong see a tremendous amount of patent activity while those lower income, middle income and even upper middle income economies, where patent rights are not very strong and not very desirable see very little patent activity. See Patent Lens.

Furthermore, WIPO assists governments in the least developed countries in efforts to put in place policies for using intellectual property rights to their best advantage by developing and strengthening the creative potential and inventive capacity of their people. When under developed countries follow a path that implements intellectual property rights they see outside investment and tremendous economic growth. On this point a 2009 report prepared for the UK Intellectual Property Office concluded:

Empirical evidence shows that stronger rights positively affect the volume of  inward FDI in developing countries, especially those with strong technical absorptive capabilities. Additionally, they may influence the composition of FDI by encouraging investment in production and R&D rather than in sales and distribution.

So there are some facts that would suggest that the critics are wrong about patents.  But wait, there is more!

Lee also wrote: “the costs of patent litigation began to exceed the benefits of holding patents in the 1990s. Software and business patents were particularly prone to litigation.”

It would seem that if the cost of litigation exceeds the benefit of holding a particular patent then there is no use to have a patent and we might as well all go home.  To believe that is one thing, but to announce such a ridiculous statement to the world? Obviously Lee has a very high opinion of himself and he has certainly drank the Kool-Aid served by the anti-software patent community. He must also think that those who know something won’t be reading what he writes or challenging the obvious absurdity.  It seems Lee knows little to nothing about how software patents are valuable and why so many start-up companies and large companies alike pursue them.

Director Kappos started off his speech by pointing out an inconvenient truth that the anti-patent community simply cannot rebut.  Kappos explained:

It is increasingly clear that intellectual property, or IP, is a key driver of economic growth, exports, and job creation. IP rights are the global currency for creating value for products and services, for all innovators, in all markets. And the protection provided by patents is critical to the innovation ecosystem. In fact, last spring, the U.S. Commerce Department released a report that found IP-intensive industries support at least 40 million jobs and contributes more than $5 trillion to our economy, accounting for 35 percent of America’s gross domestic product.

Kappos might have also pointed out that 27.7% of all jobs in the U.S. were either directly or indirectly attributable to IP-intensive industries, and the amount contributed to the U.S. economy represents a staggering  34.8% of GDP. See IP Contributes $5 Trillion and 40 Million Jobs to US Economy. These figures and economic realities seems to further call into question Lee’s comment that the facts all support the critics. Apparently Lee just ignores what doesn’t fit into his predetermined narrative.

Kappos would go on to specifically address software patents and the “patent wars” that are so often used as illustrations of the patent system run amok by the anti-patent community.  Kappos said:

Software patents, like all patents, are a form of innovation currency. They are also ecosystem enablers, and job creators. The innovation protected by software patents is highly integrated with hardware. All of it must remain eligible for protection. The current software patent “war” is hardly the first patent war—and unlikely to be the last in our nation’s patent history. Whenever breakthrough technologies come onto the scene, market players find themselves joined in the marketplace by new entrants. The first instinct of the breakthrough innovators is to bring patents into play. This is not only understandable, it is appropriate. Those who invest in breakthrough innovation have a right to expect others to respect their resultant IP. However, in the end, as history has shown time and time again, the players ultimately end up agreeing to pro-consumer solutions via licenses, cross-licenses or joint development agreements allowing core technologies to be shared.

Indeed, the groundbreaking research of Professor Adam Mossoff of George Mason University School of Law on patent thickets shows that Kappos is correct.  One of the so-called patent thickets that Mossoff has looked at is the sewing machine thicket of the middle of the 19th century. See America’s First Patent Thicket: Sewing Machine War of the 1850s. Mossoff shows conclusively that patent thickets are not a modern problem, but have existed through history.  Mossoff’s research has also demonstrated that patent thickets are responsible for tremendous growth in innovation. Patent thickets do not inhibit innovation, large numbers of companies seeking to patent the same technology leads to unprecedented technological advancement.  Mossoff says:

The Sewing Machine Combination reveals how patent owners have substantial incentives to overcome a patent thicket without prompting by federal officials or judges, and that they can in fact do so through preexisting private-ordering mechanisms, such as contract and corporate law… The Sewing Machine Combination is an example of how patent owners can rescue themselves from commercial gridlock, which unleashed an explosion in productivity and innovation in a product that was central to the success of the Industrial Revolution in nineteenth-century America.

Once again, proof that Director Kappos was correct based on unassailable historical reality. And for those wondering Mossoff is continuing his research into patent thickets and is finding the same, universal trend. Patent thickets cause innovation to leap forward.

But more than the fact that gluts of patents in one area leads to an unprecedented explosion of innovation, patents are extraordinarily useful to companies who need financing to realize their objectives. Indeed, 76% of venture-backed entrepreneurs and 67% of all entrepreneurs say patents are absolutely vital to obtaining funding. And for those software folks who always want to incorrectly believe they don’t need funding, the figure was 60% for software companies.  it doesn’t matter what industry you are in, significant percentages of VCs place a premium on patents when making funding decisions. So why would any company knowingly make themselves less attractive to VCs? Getting VC funding is already extremely difficult. Why would you weed out 60% or more VCs otherwise inclined to invest?

Now let’s return to Lee’s implication that since the cost of litigation is so high software patents are not useful. What Lee doesn’t understand is that software patents are obtained for a variety of reasons, and like every other type of patent the overwhelming majority of software patents are never litigated. Of course, Lee and his allies would rather you believe that software patents are litigated all the time, but the truth is only a small fraction of patents are litigated.

Indeed, in a typical year there may be 250,000 patents issued and there may be approximately 4,000 patent litigations filed, 96% or more of which will settle before judgment is reached. Thus only a small fraction of patents will ever be litigated, and even a much smaller fraction of patents litigated will ever wind up reaching a verdict.  That means even among those most valuable patents that are believed to be infringed only a handful will result in litigation that is not viewed as a business dispute to which there is a solution. Yes, Mr. Lee.  Litigation is not typically about winning at all costs, it is about leverage and obtaining a deal. You should have gotten that message loud and clear when Yahoo and Facebook sued each other and then just a few months later settled.  That is far and away the most common occurrence.

Take for example the chart below, which shows the cases commenced and how they were resolved in the district courts. Patent litigation is a business matter where there is a business solution.

As you can see, any objective view of reality shows that approximately 25% of patent litigations commenced settle without the district court ever doing anything. Approximately 50% of patent litigations settle before even the pre-trial conference, and approximately 20% settle after the pre-trial conference but before trial. So why focus on the expense of litigation when the overwhelming number of patents will provide value without ever being litigated? Talk about a ridiculous argument made to obscure the truth.

Software patents are valuable to attract investment, which is absolutely critical for a start-up company.  And start-up companies are the ones who do the most hiring and create the jobs in America. That is one thing that even Republicans and Democrats can both agree on.

So why would anyone focus on the cost of litigation related to those handful of cases and ignore the inherent value of all those other patents that will not be litigated? Why would you ignore those patents that result in the infusion of capital that let businesses grow? Why would you ignore those patents that are licensed and cross-licensed? Why would you pretend that software patents are something that they clearly are not unless you had an agenda? Good questions that I doubt Lee or any others in the anti-patent community will address.

But why do I get so upset about what is on its face utter nonsense exposed by someone who isn’t informed enough to actually have a fact based opinion? Aside from the fact that truth and factual reality should inform any debate rather than misinformed zealotry that seeks to distort, it matters because software is the new engine that drives practically everything. Computers are nothing other than an expensive paperweight without software, which should be self-evident to anyone who uses a computer.  To accomplish anything on a computer requires software, which means software is fundamentally critical in the Age of the Internet. Where would electronic commerce be without software? Where would Microsoft be without software? Without software smartphones would be rather stupid because they couldn’t do anything other than function as an inferior phone. And computer and various computer devices are embedded within so many of the products we use and buy every day.

Director Kappos is 100% correct. Patents are an asset. Patents are a form of innovation currency. Those that don’t see that are either fooling themselves or hopelessly blind to reality. If they want to live their life in what appears to be blissful ignorance that is fine with me, just don’t expect me to sit by and what the distortions and lies. The mindless dribble that passes as journalism influences that masses and influences policy-makers who mistakenly believe that those on the periphery of the industry are experts. Experts people like Lee are not! They are ideologues with an agenda.

Ideologues with an agenda are akin to the weakest chess player you will ever meet. What makes a good chess player is the ability to see multiple moves into the future.  They will envision to board and intricacies of every move, recursively going through possible scenarios and outcomes. Ideologues with an agenda are never capable of seeing beyond the move they are making now, always wondering what happened. The sad thing is we know what will happen if we prohibit patents in any particular area. Innovation ceases because investment dries up and there is no incentive. Sure the copycats do well for a while, but then in the absence of innovators copycats play the part of a one-trick pony.

If you haven’t noticed America doesn’t make anything any more, at least nothing that is tangible. Everything we buy is made in China, or Mexico or Viet Nam or somewhere else. The U.S. economy is based on intellectual property and the foundational intellectual property we have for the 21st century innovation based economy is software. We know from history that where patent rights are strongest is where companies locate, innovate and grow.  Where patent rights are weakest there is no foreign direct investment, companies do not go there and economies suffer. Once upon a time the UK dominated in biotechnology, but now the U.S. is dominant thanks to a strong and liberal patent system. If we curtail software patents we will be forfeiting not a single industry, but an enormous software industry AND any number of other industries and sub-industries in various other technology fields that rely upon the development of software.  Think bio-informatics, for example.

Why would we forfeit the future? This is a particularly problematic question given that the arguments against patents in general and software patents specifically have no basis in fact.  The overwhelming evidence to the contrary supports what Director Kappos said.  Patents create value for products and services, for all innovators, in all markets.  Software patents are no exception.

Mr. Lee and the others who share his views are 100% wrong. The facts do not support the critics of patents generally or software patents specifically.  The facts support the inescapable conclusion that patents foster innovation and lead to unprecedented economic growth.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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

Discuss this

There are currently 92 Comments comments.

  1. Ron Hilton December 6, 2012 10:15 am

    I predict that at some point the free software community will wake up and realize that patents actually protect rather than threaten the individual innovator, and that software technology will eventually make the whole patent system far mare efficient and accessible to the individual software developer. When that finally happens, the irrational fear and opposition to software patents will quickly melt away.

  2. Roland December 6, 2012 10:51 am

    I think I’ve been around here (IPwatchdog) for too long – could any one recommend a suitable supply of Kool-Aid?

    To me David Kappos’s comments were observations from someone with experience of the day-to-day granting and governance of software patents within the context of the law as it is rather than how he would wish it to be, hence I found myself nodding in agreement and/or understanding.

    I found myself agreeing with David Kappos observations on software patents and the natural progression towards broad cross licensing arrangements. This is something that existed between the traditional/established telco equipment vendors and mobile phone manufacturers and is something we are seeing between the majors in the software space. It also recognises the fact that building a useful piece of high-technology without infringing someone else’s IP is very difficult and in some areas impossible.

    What I find interesting is comparing and contrasting the final outcome of the sewing machine wars with where we are now with respect to the FRAND arrangements for Standards essential patents and with respect to smartphone related software patents – that are currently outside of FRAND. It would seem that we still have a way to go before we have a “Smartphone Combination” that bears any resemblence to the Sewing Machine Combination.

  3. Blind Dogma December 6, 2012 11:25 am

    Could any one recommend a suitable supply of Kool-Aid?

    Stan, I realize that both of us have been very busy of late, but this is a question that begs some of our delicious concoctions…

  4. Richard Steiner December 6, 2012 5:47 pm

    “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today. … The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors. ”

    -Bill Gates, 1991

  5. Stan E. Delo December 6, 2012 6:58 pm

    Blind Dogma-

    I would suggest some Quizzical Quinine, which has a somewhat soothing effect but is a bit tangy, or perhaps a fine 2009 batch of Persistent Persimmon that might be useful these days, depending upon which direction they seem to be going. Working on a new Spruce concoction lately, but you have to be very careful, because Spruce looks rather a lot like Hemlock.

  6. Bobby December 7, 2012 5:40 am

    Putting aside all of the other issues, I don’t think what your prediction will come true. The free software community is defined by it’s advoacy of free software, and patents are not really compatible with that. Now, it’s possible a great number of people within the free software community will change their views, but they would then no longer be part of the free software community.

  7. Adrian S. December 7, 2012 9:12 am

    The problem with the argument is a lack of understanding, I think. That software began to be afforded patent protection started a ball rolling, and yes, the judiciary does appear to have decided that software is patentable subject matter.

    That doesn’t mean that such a decision was correct, or that it helps promote the useful arts in regards to software development. One day, the people on the pro-software-patent side of the argument will understand *why* software is math, and realize that for the same reason that we can’t patent math, we shouldn’t be able to patent software. All it is is algorithms, functions, and symbols. The magic is in the hardware.

    The whole reason that there is so much software that does so many useful things is because of math, and some very smart folks who understood that a general-purpose computer could perform literally *any* computation.

    If we’re talking about forfeiting the future, we should be aware that the only entities who *have* a future in software development in the current legal landscape are established organizations with a huge portfolio, tiny players that either fly under the radar, ones that write software that doesn’t do anything useful, or consortiums who rely on their own collective patents as a stick to beat away lawsuits.

    That’s crappy for small (sometimes one-person) shops, non-commercial projects, etc.

    BSD and CPM weren’t patented (though covered by copyright), and because of that, we have OSX, iOS, Windows, Linux, and Android. I think there is room for disagreement on whether software patents are a reason for concern, or a reason to be happy.

  8. Blind Dogma December 7, 2012 9:43 am

    I “love” the fact that the biggest benefactors of the “free software” community are not the members of the “free software” community, but are, in fact, the rather large entities, that at the same time seek the demise of patents, and are also smart enough to utilize them as a weapon in their current state.

    The largest firms would like nothing more than to eradicate the power of patents so that new ideas do not have the power of upsetting their other market powers. One only has to realize who coined the term “Troll,” or who contributed heavily to the AIA and its various patent-weakening effects to understand the 10,000 foot picture. The mass of lemming programmers who “think” that free software is a strike against “the man ” will sadly wake up one day buried by the size of that man with little or no IP protection.

  9. Ron Hilton December 7, 2012 11:12 am

    Software patents would definitely be beneficial to free software, in much the same way that copyrights have been adapted to the promulgation of free software, through a general public patent license. Such a license would permit the non-commercial use of the software, while limiting the commercial use. Pure “free software” would totally prohibit commercial use, while the less doctrinaire non-profit open-source software could selectively license commercial use for purposes of cross-licensing with for-profit software vendors, in exchange for non-commercial use of the proprietary software and/or royalties to help fund the non-profit open-source project. Free software has to co-exist in a for-profit proprietary software world, and patents would be the ideal vehicle for doing that.

  10. Ron Hilton December 7, 2012 1:47 pm

    BD, this may be the first time I actually agree with you 100% on something 🙂 Your posting 9 above is spot on.

  11. Ron Hilton December 7, 2012 1:48 pm

    I mean your posting 8. Posting 9 is great too 🙂

  12. Ron Hilton December 7, 2012 1:54 pm

    Adrian, all engineering is mathematically based. Your argument is completely inconsistent. Boolean logic functions can be done in either software or hardware. By your argument, if something gets moved from a silicon gate-array to firmware, then it would no longer be patent-eligible. Moving functionality into firmware/software is often more cost-effective and efficient. Why would we want the patent system to penalize that?

  13. Stan E. Delo December 7, 2012 2:12 pm

    Well said Ron-

    Traditional *math* is usually a base ten type of system, but computers usually use a Binary system (either On or Off) Analog versus Digital, if you will. Check out a base eight type of math some time, and it will open up whole new worlds of understanding for you. Math is really just a tool after all.

  14. Stan E. Delo December 7, 2012 3:32 pm

    While math is a well understood and non-patentable tool, how you use any particular tool may very well be a patentable invention. Throwing away the possibility for method or process types of patents seems unwise to me. Ipso facto, it seems as if Director Kappos is as right as rain in defending *software* patents. Means plus functionality.

  15. Adrian S. December 7, 2012 4:03 pm

    I think I may have said something confusing (or wasn’t well understood), and I apologize for that.

    Ron, engineering requires math, yes. Software doesn’t require math, it *is* math. Firmware is software, yes.

    By my argument, anything that is in and of itself an algorithm would be patent-ineligible, yes. The hardware for executing the algorithm, however, would be patent eligible. The hardware does stuff, the software is just a mathematical idea expressed in symbols that tells the hardware the conditions it is supposed to use when operating.

    Software can’t replace an invention…I can’t use software to replace a catalytic converter on a car, for example.

    Stan, math as we commonly speak about it is not what I mean by math. I’m talking about the many systems of symbols that humans use to manipulate and understand numbers. Could be base 2, 10, 8, 16, or 43…it’s still math, and the computer doesn’t care, only the programmer does.

    The number 001 in binary might mean 1 or it might mean 4, depending on what the algorithm that the programmer wrote thinks it ought to mean.

    Math is absolutely a tool, and it’s one that’s well understood, yes. Things you make with it may well be patentable, as is the case with processors and other circuits created by Intel, AMD, Motorola, IBM, and others.

    If the intent of patents is to promote the useful arts, and patents on software by default prevent broad classes of other software from being created, then isn’t that a reason to discuss not only whether software should be considered patentable subject matter, but whether software patents promote the useful arts regardless?

  16. Ron Hilton December 7, 2012 4:26 pm

    Software is most definitely NOT math. Some high-level software language statements SUPERFICIALLY RESEMBLE mathematical equations but that it is the extent of it. I have a BS degree in Math and an MS degree in EE with a computer/digital emphasis and I know the difference between math and software. Throughout my career I have designed silicon hardware and written firmware and software. Often it is simply an implementation decision as to which approach to use. The functionality is the same, and when it involves a novel design, it is and should remain patent-eligible.

  17. step back December 7, 2012 4:37 pm


    You are completely STUN.

    The whole world is made of out patterns.

    Patterns of protons and neutrons define the elements of the Periodic Table.
    Patterns of elements define the compounds and their solid or liquid or gaseous characteristics at various temperatures and pressures.
    Patterns of stored electrons and magnetic domains define how a computer will work or not work for its intended purposes.

    Patterns of letters in a word define the word.
    Oops. It seems I got the pattern “STUN” in the first sentence above backwards! Sorry. 🙂

  18. Stan E. Delo December 7, 2012 4:55 pm

    They have already decided in the courts that a machine plus method concept is patentable, so you will just have to get used to the idea. It’s Not just a good idea, but it’s the LAW, like the Law of Gravity for instance. Patent law may be somewhat mutable, but where the Space Shuttle enters the atmosphere to arrive at a safe landing is most definitely Not negotiable. Billion dollar glider, with no option to just go around and try to land again…..

    Try our new Arrow-root Kewl Aide!

  19. Adrian S. December 7, 2012 5:09 pm

    Ron, if you’re telling me that you can’t locate functions in a program, or don’t agree that software takes an input, applies a transformation, and produces an output, then I don’t know what else to say. We may be talking about different things. High-level statements in a given programming language look like whatever the language looks like…they’re an abstraction, just like low-level ones are an abstraction.

    I’m not saying that a program is an equation (although it may contain statements necessary to perform one or more equations), I’m saying that a program is a mathematical utterance (or many of them)…it’s math. It says “given this, do this”. A computer (a typical PC) is executing the functions embodied by those utterances…those symbols.

    I agree that digital hardware vs. software (if you’re talking about implementing a function) is an implementation decision you would have to make. Does that mean software *should* be patentable or does it mean that some digital hardware is really just important because of performance?

    Computers are really good at simulating digital circuits because that’s what they were designed to do. They’re universal computing devices and all digital circuits are is chains of gates that can be directly mapped to boolean logic operators. When they were invented, the people creating them thought it would be great to have a universal digital computer that you could feed a program instead of having to design a circuit.

    The functionality is not the same because the software can’t actually do anything. The hardware that it runs on can do something, but the software is just instructions. Implementing as hardware instead for a reason other than performance seems (to me, at least) to be a way to hide the fact that it’s just math.

    I’m not saying that software is unimportant, I write lots of it every day, but it’s not functionally equivalent to anything that physically exists because *it* doesn’t really exist…it’s just instructions that get executed in a particular order by a machine purpose-built to do execute those instructions. What is it that you see as the dividing line between math (manipulating symbols) and software?

  20. Adrian S. December 7, 2012 5:22 pm

    Stan, you said “…They have already decided in the courts that a machine plus method concept is patentable, so you will just have to get used to the idea…”.

    Maybe so. I’m just saying that (for a couple of reasons) might not be a good thing.

    (and “step back”, your point is well taken…all of those things are physical things that exist, though. Interestingly, you gave me enough context to be able to create and run a program in my head to determine the meaning of the symbols “STUN”. Didn’t even have to use a computer to run it!)

  21. Stan E. Delo December 7, 2012 5:53 pm

    Maybe some Mandrake Root instead, upon further consideration. In moderation, of course, as always.

  22. Bobby December 7, 2012 5:56 pm

    I have to say it’s quite amusing to watch you when your feathers are ruffled. You slather on insults and absolutes that make your arguments look weak and desperate. Also, you seem to have relied largely on rather biased sources. One problem is that ‘pro-IP’ arguments tend to use questionable methodologies. For example, Tim Lee, your apparent new arch nemesis, seems to have written an article debunking the 27% of US jogs argument by putting real analysis into the data. In a nutshell, trademark law grossly inflates the number, and any business where their name is important is an ‘IP-intensive industry job.’ Also, the claim about patent thickets is rather dubious. The real argument isn’t that patent thickets are innovative, but rather, that they are so cumbersome, that the major patent holders need to cooperate in order to have a market to speak of. Therefore, they form alliances quite similar to guilds and cartels, This often results in keeping new competitors out of the market or at least marginalized (which is what’s happening in the smartphone market). This is by no means economic or beneficial to innovation. One good example is Thomas Edison’s Motion Picture Patents Company, a convicted violator of antitrust law, whose horrible actions led to movie studies moving over to California to escape the tyranny, later becoming what we know as H.ollywood

    It appears you’ve overdosed on your own supply. That patents are overall a means of defending the small against the big is not and has never been an intelligent argument. What patent provide defense from is the harshness of open competition. They consolidate power, not distribute it.

    Re: The FOSS community learning to embrace patents, you make a number of mistakes. For one, free software has not benefited from copyright. WIthout copyright on software, all software would be technically free software, Also, patents and copyright differ in a number of ways, the most important element here being a defense of independent authorship. The FOSS community can work on it’s own without trouble as long as they aren’t looking at the code of proprietary rivals. However, the same is not true of patents. If free software includes something patented without any knowledge by the infringing party, there is no defense.

    Re: software being math, Donald Knuth disagrees with you, and he has more credentials in math and software than you. Furthermore, the Supreme Court has undeniably agreed that some software is math via Gottschalk v. Benson. There’s no argument anymore that software can’t be math, so at best, software would be sometimes math, sometimes not. The way it would be not math would be to contain non-math functions, but such functions do not exist.

  23. Stan E. Delo December 7, 2012 6:05 pm

    I think you meant to say:” that might not be a good thing..” I happen to disagree. Do what you like, but you have to live with the results. Actually it will probably be your children that will have to pay for any mistakes that you might make.

    And then again there is Bobby-

    Ciao bella-

  24. Stan E. Delo December 7, 2012 6:25 pm

    Does anyone else here remember where the term a computer bug came from?

    As it turns out, one of the very first large scale computers was the ENIAC, which filled about half of a very large room. After they lit it up for the first time and ran it for a while, it seemed to keep cycling error messages and failing to boot up during re-start. Upon further examination, they found a moth that had been attracted by the heat, that had partially shorted out the computer. Hence the term bug. Nowadays they seem to be more virtual than animal.


  25. Ron Hilton December 7, 2012 9:33 pm

    As any patent practitioner knows, abstract algorithms are not patentable but computer software is. The software must be runnable on a computer or information processing system, meaning at the very least it must be “stored on a non-transitory computer-readable medium.” Software by definition runs on hardware and has patentable utility. It does not exist in a vacuum.

  26. Stan E. Delo December 8, 2012 1:54 am

    Wouldn’t software alone be useless, unless it had a device or a machine to direct? The old Enigma code machines were decidedly mechanical in nature, but they had to be manually re-programmed each day to deliver the desired messages. The only problem was that some Polish folks and the Brits cracked their code, and they didn’t know that they had. Much the same for the Japanese version, whose combination was unlocked by Americans, as I seem to recall.

    I think they both sort of figured that they had out-smarted their enemies, but in both cases they were Wrong. A new sucker born every minute, thinking they are so much better than others. What if your logic is flawed or hopelessly skewed? Hirohito and Hitler for two examples.

  27. Stan E. Delo December 8, 2012 1:56 am

    Oops- Wrong link-

  28. Roland December 8, 2012 7:36 am

    @Ron #16

    “Throughout my career I have designed silicon hardware and written firmware and software. Often it is simply an implementation decision as to which approach to use. The functionality is the same, and when it involves a novel design, it is and should remain patent-eligible.”

    Putting aside more complex projects, could you clarify that you are implying that the same functionality could be patented twice: once for the discrete hardware implementation and again for the Software method and possible a third time for an implementation using a PLA/firmware?

  29. Adrian S. December 8, 2012 11:33 am

    Stan, you said “Wouldn’t software alone be useless, unless it had a device or a machine to direct…”

    It wouldn’t be useless, but it might be pointless or nearly so without a machine that could execute it quickly.

    If memory serves, Ada Lovelace wrote programs before there was a machine to execute them with.

    A human being is capable of performing the same steps as a computer in executing a program, provided they understand the symbols used by the programmer. A human being and a computer are both calculators…we’ve invented computers to do the tedious job that some calculations require (otherwise a program would take a *really* long time to run if executed via a human being.

  30. Anon December 8, 2012 11:42 am

    I do not think the comment was geared to patenting the same functionality twice (as in separately), but rather that patents protect function – as opposed to copyright protecting expression – and that the SAME functionality, patented once covers the different means of achieving that functionality, expressly achieving that functionality through software.

    As to the (over)depence on hardware, the concept of virtual machines should put that to rest.

  31. Stan E. Delo December 8, 2012 4:03 pm

    Something as humble as a pencil and paper would seem to constitute a machine transformation, or maybe an abacus. (A pencil is a tool isn’t it, invented by a human long ago?) If all you have is a concept or idea, it will not become an invention until you can enable it somehow. You have to prove that some objectively tangible result will transpire because of your invention. If electronic computers had never been devised, we obviously wouldn’t be having this conversation.

    Some very large corporations got their starts using valid patents as business tools,and little else, but now it seems as if they wish new inventions and and their resulting patents would just stop happening. It’s not going to be that way, but they managed to make it more difficult and expensive for new startups to challenge their market dominance.

    Do think that was a wise thing to do? Who benefits from that?

  32. Stan E. Delo December 8, 2012 4:12 pm

    Do you think it was wise of them?

  33. Ron Hilton December 8, 2012 5:09 pm

    The same functionality cannot be patented twice, but a novel and non-obvious improvement to achieving the same end result certainly could be patentable.

  34. Stan E. Delo December 8, 2012 6:02 pm


    I once discovered several different ways to accomplish essentially the same results during my experiments. I then had to concentrate upon that which would be the *best*, in order to arrive at a patent application that will pass muster and is reasonably focused. Several seemed good, but were either just too complicated and therefore too expensive to produce, or they had harmonics issues.

    I had to go a little further to get to a much better solution, which solved several problems all at once, especially as regards production costs. I probably wouldn’t have gone the extra nine yards if I didn’t think that I might be able to acquire a valid patent right, at least here in the US.

    The Quid pro Quo, so to speak.

  35. Stan E. Delo December 8, 2012 7:44 pm

    Have you ever been to the new assembly hall? I developed a way to shape the Cherry wood staves for the acoustic reflectors for their new 14,000 pipe pneumatic style of organ, that we built here in Port Townsend and shipped to them. The sound must be amazing, and they even sent me a color print of the resulting presentation. I would really love to see some of the genius built by Fetzers and Sons, but I will need an introduction I tend to think. The larger bass pipes were about 32 feet long, and the array is about 70 feet wide.

    Astoundingly immaculate fine woodworking everywhere you look, which is their hallmark.

  36. Ron Hilton December 8, 2012 11:23 pm

    Yes, I have been several times and the sound is great. It’s nice to know you helped design the magnificent organ. We are going to the Mormon Tablernacle Choir Christmas concert there in a couple weeks. The guest stars will be Alfie Boe (Jean Valjean of Les MIs) and Tom Brokaw. It should be fantastic.

  37. Gene Quinn December 9, 2012 11:21 am


    I don’t throw insults. I just call things what they are. The fact that you are uncomfortable with the English language and prefer politically correct speech is a YOU problem, not a me problem.

    I find it amusing that you call me to task and let Lee and his misrepresentations skate. Again, that is a YOU problem.

    With respect to patent thickets, all you have to do is read the historical fact. Patent thickets are objectively good for innovation and that can’t be factually disputed. The only way you could come to any other conclusion is to pretend that a world without patents would produce the same level of innovation. But to live in the fantasy world in your head you have to ignore historical fact and economic reality. Anyone who is objective can verify for themselves very easily that there is little to no innovation in countries where there is no patent system or only a weak patent system. If you and the other critics were correct innovation would be unprecedented in those countries with no patent system. Of course, you and others never want to address this universal truth. Curious.

    It is also find it extraordinarily telling that you slander Thomas Edison. That speaks volumes about your knowledge, objectivity and grasp of reality.

    If you don’t like the truth that you read on perhaps it is time for you to go elsewhere. I am really starting to grow tired of your misrepresentations and overall ignorance.


  38. Blind Dogma December 9, 2012 12:17 pm


    Your track record of being so incredibly incorrect makes your reply at 22 only confirm the correctness of my post at 8.

    I guess I should say “thank you.” Although such would indicate that you meant to confirm my post (which by the way is confirmed through my actual experience in the real world).

    Here, have a glass on me.

  39. Bobby December 9, 2012 2:18 pm

    “I don’t throw insults. I just call things what they are”
    Yes, you do. There was no need to attack Tim Lee’s journalistic credentials, call him a zealot, etc. I happen to think you are wrong on a number of matters, but I do my best to only attack your arguments. You are being quite disrespectful and overly defensive. You are also tending towards pointing out things as objective facts prematurely.

    “With respect to patent thickets, all you have to do is read the historical fact. Patent thickets are objectively good for innovation and that can’t be factually disputed.”
    Objectively, patent thickets are a mess. The good thing that comes from them is that the mess often requires a pool to form in order for there to be a market to milk in the first place.

    “Anyone who is objective can verify for themselves very easily that there is little to no innovation in countries where there is no patent system or only a weak patent system. If you and the other critics were correct innovation would be unprecedented in those countries with no patent system.”
    Historically a number of otherwise similar countries without or with weaker patent systems have done very well both from a market and innovation perspective. Where the problem lies is that countries with patents threatening trade sanctions against those without such policies. For example, you are intelligent enough to

    I am not slandering Edison because what I say is a matter of fact on the record. I mean that as facts that cannot be reasonably disputed, as opposed to different interpretations of a number of statistics. The MPPC was a convicted violator of antitrust law, and the restrictive terms of his company is a well documented major reason that many innovative American filmmakers moved to Hollywood, making up the current major studios. In order for this to be slander, you would have to claim that United States v. Motion Picture Patents Co records were forged or that the accounts that film studios moved to avoid Edison were merely fictional. Now, in all fairness, the MPPC was more of a force for being located away from New Jersey than near California, with weather and a fairly patent unfriendly district court being positive reasons to locate there.

    Once again, you neglect actual arguments, claiming that because you have told yourself that I was wrong so many times before. If you wish to actually debate, talk about points. Otherwise, I will just chastise your lack of an actual argument because I won’t sink to your level.

  40. Bobby December 9, 2012 2:31 pm

    My apologies, I accidentally posted before I finished editing my reply.

    For example, you are intelligent enough to realize that around 5 year patents for software would almost certainly be better, and would probably be better in a number of fields. At least outside of medicine, 20 years is pretty clearly too long most of the time. However, I believe it’s a WTO treaty that require that we have at least 20 year patents, or else nasty things could happen to us. Similarly, a recent rebuttal to a Republican memo by ‘Copyright Alliance’, a group whose members include most of the major copyright big wigs, dedicated a large portion of the paper to the number of sanctions we would face if we actually changed our laws to something more sane. That’s a very telling sign about a large portion of this debate. Actually testing these theories out would mean that we would be subject to trade sanctions. If proponents fimrly believed these policies were objectively better, they probably wouldn’t feel the need to use threats to enforce it.

    Trade is one of the most important parts of an economy and to innovation, and expansion of free trade is responsible for explosions in both. There is a much stronger correlation with trade and innovation than patents and innovation. Likewise for communication. Cultures and nations without patents are at most decades behind, while those without mass communication and trade are still millenia behind.

  41. Gene Quinn December 9, 2012 3:21 pm


    Saying someone doesn’t know what they are talking about when they don’t know what they are talking about is the truth, not an attack. Saying that Lee blatantly misrepresented in several articles regarding what the Supreme Court has said relative to software patents is not an attack, it is pointing out that what he said is 100% wrong.

    It is your right to believe I am being disrespectful. It is also my right to disagree.

    You are right about one thing. I unapologetically identify things that are 100% accurate as objective truth. Neither you nor Lee can prove I am incorrect because I am right. You don’t offer facts, you offer argument. I offer fact after fact after fact after fact. I cite my sources. You don’t do that. Why? Because you can’t. Just like the other patent critics you have no support for your argument, just pointing to others who argue the same thing. That is an echo chamber, not fact. And when patent critics do cite things I can pick them apart because they are wrong. Just like when Lee said that the Supreme Court has never authorized the patenting of software. They have done so in at least two separate cases. I am right and he is wrong. So are you.

    If we want to have a debate about the proper length of patents let’s have that debate. The debate needs to consider whether 20 years is enough for pharmaceuticals and biologics (which it is not) and also needs to come up with a solution to get software patents issued more quickly. There will be areas other than pharma and biotech that deserver greater than 20 years given the expense and time for research and development and taking the innovation to market. I doubt you want to discuss longer patent term though, even though.

    Of course, a discussion about the appropriate length of patent term can’t just pick numbers out of the air. It has to take into consider the proper and justified uses of patents. If companies don’t have exclusive rights they can’t obtain funding. So picking a number of years that is so low as to be unattractive to investors is a non-starter.


  42. Stan E. Delo December 9, 2012 4:22 pm

    Gene writes in part: “The debate needs to consider whether 20 years is enough for pharmaceuticals and biologics (which it is not) and also needs to come up with a solution to get software patents issued more quickly.”

    Pharmaceuticals alone provides a very good example of where longer patent terms are critical to the future of innovation. Many products of invention, research and development, and FDA approval may cost upwards of a billion dollars once all is said and done. Several years on the AUTM forum taught me this, and if the universities are not able to license their inventions to industry, they would probably just stop doing the initial R&D necessary for a viable patented invention.

    It might take licensees 5 or more years to get to market, to try to profit from their investment. If they finally get there, they might benefit the health of millions of people, which is decidedly a positive outcome in my opinion. The patent right costs might be considered to be very effective health insurance in some senses.


  43. Stan E. Delo December 9, 2012 4:44 pm

    Oddly enough this just came in from Dr. Mark Summerfield in Australia, a few minutes after my last #43 comment. I herewith rest my case.


  44. Bobby December 9, 2012 5:52 pm

    Calling him a zealot is a disrespectuful attack, and it’s not an unreasonable argument to conclude that the difference between Benson and Diehr is that the latter involved a unique machine that would itself be patentable. Perhaps I’ve not read your blog thoroughly enough, but I’ve yet to see a better explanation of why the software in one is patentable subject matter and why the other isn’t.

    I will agree that if a field has shorter patents, then taking a long time to issue them would be troubling. I agree that a major backlog is troubling for many parties involved, because it means uncertainty, and presents a risk for both a patent holder and practicioner. There are only so many ways to reduce backlogs, hire more examiners, have examiners examine more patents, or reduce the number of patent applications. I’m going for option three. Here are a couple of reforms I would advise in areas with shorter terms:
    1. Greater penalties for abuse and greater responsibility for prior art on applicants. This would discourage spamming the USPTO as major corporations often do with every minor, marginal improvement that they would make just as a result of ordinary competition.
    2. Immediate publication: This would stop applicants from having their cake and eating it too. 18 months of having a trade secret may be a long time for certain inventions, so the applicant isn’t really giving up anything by disclosing.
    3. More crowd-based prior art searches, and the establishment of prior art databases, perhaps in something similar to a wiki style.
    4. In regards to software especially, a requirement for functional example code that must be submitted to the public domain. I suspect this would be the real factor that trims out those superfluous applications.

    ” So picking a number of years that is so low as to be unattractive to investors is a non-starter. ”
    Actually, it’s a totally reasonable place to go. If, in a particular field, no patents is the ideal solution, or the ideal solution is such a short period that a patent can’t reasonably be issued in that time, then doing nothing is a perfectly fine solution. You’ve in the past advocated the principle of ‘applying the do no harm’ principle of medicine towards patents, and a lack of a patents is precisely that. It’s strange to me that when an ‘IP’ proponent wishes to have a ‘reasonable debate’, they often insist on completely removing abolition from the table. It’s a truly neutral position and is actually the safe thing to do. It’s also a good bargaining chip and a way to keep things in perspective.

  45. Stan E. Delo December 9, 2012 6:50 pm

    Ron H. writes in part:
    Yes, I have been several times and the sound is great. It’s nice to know you helped design the magnificent organ.”


    I actually didn’t design the reflectors, which the Fetzers had already done. The complex shapes needed wood strips that had changing bevels as well as being tapered to varying degrees. I just designed a device to machine the Cherry strips to the requisite shapes using a very large router, after I had mechanically *programmed* the router jig.

    It allowed us to produce very accurate planks in about 4 minutes, instead of perhaps a half hour or more per part the hard way. (Perhaps 400 parts or more) They sent us a set of CAD-cut plywood frames, but we had to develop a building jig to assure that they were built true to the design, because the strips were warping their suggested construction, and so that they could be very reliably mounted up above the organ pipes. The final shaping was mine, and I think they came out pretty well. They even sent us a few gallons of their proprietary bright finishing product, which I applied very carefully with a spray gun. Very remarkable innovation, years before others had discovered it. Very fast to apply, and also pretty elastic, to move with the wood as it breathes.

    Almost like a stringed instrument or piano soundboard, if you will, producing rich harmonics if you do it just right. Since the pipe array is about 50 feet wide, it must have an interesting three dimensional aspect to it.

    Happy Holidays-

  46. Stan E. Delo December 9, 2012 7:57 pm

    I also spent a fair amount of time making very sure that everything on the inside was very firmly glued together. I sorta figured that the powers that be might take a somewhat dim view of my being careless in any manner, allowing careless work to produce harmonic vibrations in the case work. Once they were installed, it would have been an expensive proposition to take them down and try to *fix* them. No complaints so far, which is great to hear of.

    Not sure if they fastened them hard to the overhead, or whether they are suspended resiliantly to the building, which is probably none of my business in any event.


  47. Stan E. Delo December 9, 2012 8:24 pm

    Arm-waving and unfounded assertions will not win the day, unfortunately for you. Fortunate for others, but apparently not for you. In my opinion, Gene has been way more than patient in your regard, so you might want to consider that. Either be civil and reasonably well spoken, or maybe you will have to bother other folks. The choice is yours alone.


  48. Gene Quinn December 9, 2012 8:54 pm


    You say: “Calling him a zealot is a disrespectuful attack…”

    First, that is ridiculous. Lee is a zealot. Despite being proven incorrect he does not recant. Instead he doubles down. He is a zealot.

    Second, since when is being called a zealot disrespectful? Do you even know the meaning of the word? The definition of zealot is: “One who is zealous, especially excessively so. b. A fanatically committed person.” See:

    That pretty much describes Lee perfectly.

    Next, the invention in Diehr was software and the Supreme Court found the invention patentable. That is pretty much all there is to it. Nothing more complicated than that. It is a mystery how you and Lee can be at all confused. That is how everyone in the legal profession and all the Judges understand the case. Whether you, Lee or other patent critics want to read the case differently is up to you. But please don’t be upset that those of us who have actually read the case expose your position for the nonsense that it is.

    As far as patent term… I knew you were being your disingenuous self. You say that picking an arbitrary number of years is a reasonable place to go. That is asinine. So rather than spending time figuring out what is appropriate from an economic, scientific, legal and investment standpoint we just pick something randomly and arbitrarily.

    Bobby… please either stop with this lunacy or go elsewhere. I’m not going to allow you to get in the way of meaningful and thoughtful debate on the issues any more. I’m not going to tolerate your intellectual dishonest comments any further.


  49. Roland December 9, 2012 9:05 pm

    @Ron #34 & @Anon #31

    Thanks for the feedback, it was just Ron’s comment #16 made me think that the first patent would be for a discrete electronic circuit whereas a software implementation could be patented as a software method. Although I accept in today’s world a good patent application would probably cover both implementations.

  50. Roland December 9, 2012 9:42 pm

    Patent term – pick a number: 20 years? 5 years? 0 years?

    I think if all scenario’s are to be considered, we should perhaps also assess the merits of bringing patent and copyright protection into line! Since it does seem odd for example that a musician can quite quickly work up a piece of music (just look at the speed many of the 1960’s groups put albums together as studio time was very expensive and in relatively short supply) and have this work automatically protected for a substantial period of time, yet an inventor will only get 20 years of protection and only if they make the effort to apply (before telling any one) and pay the maintenance fees. However, I doubt copyright holders would volunteer to reduce their rights to 20 years.

  51. Anon December 9, 2012 10:24 pm


    There are substantial differences in the protection schemes between Patents and Copyrights that need to be kept in mind than just duration. Things like fair use, independent creation and the difference between protecting mere expression and functionality.

  52. Bobby December 9, 2012 10:30 pm

    ‘Fanatic’ is generally seen as an insult, and you are claiming that he is a zealot because he is doubling down when proven wrong. That’s definitely an insulting claim. Your intent is to make a disparaging remark. It very well may be that he is deserving of that claim, but that doesn’t make your remark not an insult.

    “Next, the invention in Diehr was software and the Supreme Court found the invention patentable. That is pretty much all there is to it.”
    You didn’t answer the question I asked. The patent in Benson was software too, and it was found unpatentable. What is the difference in these cases that makes some software patentable and some software not patentable? i am not making a statement here about your interpretation itself, but rather, asking you to reconcile your interpretation with a case that appears to conflict with it.

    “That is how everyone in the legal profession and all the Judges understand the case”
    I know there are lawyers that disagree. Eben Moglen certainly disagrees, and I doubt even among judges you’d find anything close to uniformity. You generally can’t even find that in the Supreme Court, and you have often derided judges for their lack of clarity that leads to uncertainty for everyone.

    “As far as patent term… I knew you were being your disingenuous self. You say that picking an arbitrary number of years is a reasonable place to go.”
    I didn’t say that an arbitrary number of years is reasonable. I attacked your outright rejection for a certain subset of numbers for invalid reasons.

    Let’s say hypothetically that we conclusively find that, in software, if we assume a perfectly functioning patent office and court system, that we have a net benefit only from 9 to 15 months, with the mathematical ideal close to 13 months. However, we find that, in practice, because of the time the patent system takes, the time it takes for a trial, and other real life innefficiencies, that patents with a duration shorter than 17 months are never worth the hassle, and that duration and anything less will be effectively the same as having no patents. Given this data, how long should a software patent last? You might advocate changing the courts and the USPTO, but let’s say that this isn’t practical at this time. Maybe some day changes might occur that could reduce overhead and change these numbers, but this isn’t an option that will produce results in the near future.

    What exactly about my posts has been uncivil? Gene is the one that has made claims of slander towards me

    I certainly agree that this is a good idea. I believe Gene has expressed concern with this as well. However, not only are copyright holders not volunteering for shorter terms, but they’ve managed to tie our hands on the matter. The aforementioned Copyright Alliance rebutally to a Republican memo repeatedly mentioned how it wasn’t an option without facing trade sanctions. Having our hands tied in such a way is very concerning and a sign that major players on one side of the argument don’t want to fight fair.

  53. Ron Hilton December 10, 2012 12:05 am


    I’m impressed with level of quality and attention to detail you applied to the organ case work. You don’t see that kind of craftsmanship much anymore. That’s something I’ll always remember from now on when I hear that organ. Happy Holidays to you an yours too.


    Ron Hilton

  54. Ron Hilton December 10, 2012 12:15 am

    For those of you who are anti-patent, I would suggest considering whether anti-trust (with some improvements/reforms) might be a better solution to the problems you are concerned about. Intellectual property takes as much if not more investment and effort to create as physical property, and is equally deserving of legal protection. Dismantling a basically sound legal system to address the rare pathological case would do way more harm than good (like killing the patient to cure the disease).

  55. Stan E. Delo December 10, 2012 12:29 am

    And then again there is the very ancient Hippocratic Oath, which virtually every doctor in the world swears to uphold; “First do no harm”

  56. Roland December 10, 2012 6:59 am

    @Anon #52

    I was thinking (probably too deeply) about Adrian S’s #15 point “By my argument, anything that is in and of itself an algorithm would be patent-ineligible, yes.” along with Bobby’s point in #45 “It’s strange to me that when an ‘IP’ proponent wishes to have a ‘reasonable debate’, they often insist on completely removing abolition from the table.”

    Firstly, Bobby’s point reminded me that many anti-software patent supporters like copyright protection and seem to see nothing wrong with it as it stands today, hence why I raised the question of either extending patents or (preferrably) reducing the term of copyright. But you are right we probably shouldn’t casually equate the two forms of IP.

    Secondly, Adrian’s point does require a little consideration, particularly with respect to fundamental algorithms. As an example the various polygon clipping algorithms – mostly developed in the 1970’s, which are fundamental to all graphical computer displays capable of displaying overlapping solid objects (eg. an application running in a window displayed over another windowed application). If I take Adrian’s logic these authors should only enjoy copyright protection on their published works, whereas currently these algorithms can also enjoy patent protection (I’m not sure about the original 1970’s algorithms, but certainly there are a number of enhanced polgon clipping algorithms that have received patent protection since 1992).

  57. Gene Quinn December 10, 2012 12:50 pm


    Now I understand why you seem so dense. You really are completely clueless. You don’t understand even the most basic legal matters. Diehr came AFTER Benson. That means that Diehr controls and the prohibition against patenting software, if there ever was a prohibition, was erased. In law it is EXTREMELY basic that the last case on a point controls. This is exactly why folks like you and others who know nothing about the law shouldn’t be commenting on the topic. You think you know everything there is to know, but the most basic of legal principles escapes you.

    I might add that the Supreme Court in Bilski also recognized that software is patentable, and that was only a couple years ago.

    If there are lawyers that disagree they are objective incorrect. Whoever Eben Moglen is he/she is wrong if they disagree with what I wrote. There is no problem with being wrong. Lee seems to relish being wrong, as do you. Just don’t expect me to accept your wildly inaccurate statements without pointing out that they are wrong.

    As far as fanatic goes… if it is an insult then don’t be a fanatic. It is an accurate description. I will not dumb down what I write because accurate descriptions offend those. I am not going to sanitize my writing so it is palatable to the likes of you or any other thought police.

    As for hypotheticals, I’m not going to engage you. You first need to come up to speed on the most basic legal principles before I will waste any more time engaging your ridiculous assertions.


  58. Ron Hilton December 10, 2012 12:59 pm

    Speaking of copyright, I disagree with Bobby’s earlier statement that the free software movement was not helped by copyright law and would have been better off if there were no IP laws at all. IP gives the developer control of their creation, whether or not they choose to commercialize it. Without copyright (or should i say “copyleft”) the free software movement would not have been able to keep their software free. There would nothing to prevent commercial entities from copying and selling it as part of their own product offerings.

    BTW, although I disagree completely with Bobby I have seldom if ever found his posts to be insulting or attacking the character or motives of individual people. Frankly, BD and Gene himself seem to make the greatest use of ad hominen on this forum. But I just tune that part out and look at the substance of what an individual is saying.

  59. Bob December 10, 2012 2:33 pm

    So, you are claiming that Benson is no longer valid case law? That’s qute a bolTood claim that’s certainly notmainstream. Benson, Flook, and Diehr are often called the patent eligible trilogy, which lead to a view that they are complimentary, not conflicting.

    Free software doesn’t forbid any thing you mention, and in fact, NOT allowing those things would make a license non-free.

  60. Ron Hilton December 10, 2012 3:12 pm

    Free software often does come with major strings attached, such as having to disclose and freely license the source code of any other software product that incorporates the “free” software, which advances the goals of some of the more ardent proponents of free software. So whether FOSS wants to take over the world, or merely coexist with proprietary software, an IP legal framework is needed.

  61. Anon December 10, 2012 3:43 pm


    You are aware that Benson has been cabined severally by Diehr, correct?

  62. Stan E. Delo December 10, 2012 7:08 pm

    Aren’t Copyrights just a bit like design patents in some senses? There is a way to *patent* new boat hull designs, but my sense and professional advice was suggesting that as little as a 10% design change could render the newer design new and novel.(My Naval Architect friend and erstwhile mentor George H.) It didn’t sound very attractive to me, so I chose to do other things.

    Copyrights would seem to have even a finer line to draw in the sand. Unless you plagiarize their creation nearly exactly, the creator has nearly no recourse to do anything about it. In the case of software, even trying to get an International Trade Commission injunction against importation will most likely be impossible, because it can be sent anywhere via the Internet.

    Perhaps this is just evolution in action, where folks either adapt, or they might have a short history. Part of being civil is to not make several negative remarks about others in a single message, and then expecting it to be considered as a part of the debate. It is not. It is actually mostly You that has been alienating others, and very few others. You would probably be more happy posting to TechDirt, if it still exists, and many here probably wouldn’t miss you at all “Bob”


  63. Bobby December 10, 2012 7:14 pm

    At least in the US legal tradition, investment is not itself a justification of patents. In fact, that’s an important element of patent law, codified in USC 103 as “Patentability shall not be negatived by the manner in which the invention was made.” That puts an invention that was conceived by someone who figured out everything in their head on equal footing with someone who kept endlessly trying different things until finding one that worked.

    That’s not actually in the Hipocratic Oath, although it contains something a bit similar. More importantly, the meaning of that phrase is that, given treatment that may be harmful to the patient, it is better to abstain from treatment. You and Gene seem to think that the patient is the patent system, and that treatment is changes to the patent system. However, the patient is actually the public, and the treatment being the patent system. Abstaining from treatment would be to abstain from the patent system.

    There’s obviously no need to freely license software if software can’t be copyrighted, so that’s a moot point. Without copyright, all software is freely licensed. So, the big thing that copyleft licenses are forcing is freely distributing source code. I would argue that this is minor compared to the doors that would be opened by a lack of copyright (like reverse engineering and the unsustainability of proprietary models absent copyright). Also, GPL enforcement is usually not really strictly enforced, so it’s worth considering how much of the contributions are really voluntary. Keeping your code private has a number of issues. Maintaining a private branch has costs which quite often don’t outweight the benefits.

    The Diehr opinion doesn’t really seem to say so, claiming that the rejection was an overly broad interpretation, and that involving software, math, or such in otherwise statutory subject matter doesn’t make something something nonstatutory subject matter. From the opinion: “respondents do not seek to patent a mathematical formula, but instead seek protection for a process of curing synthetic rubber. That’s a far cry from software.

  64. Bobby December 10, 2012 7:23 pm

    Where exactly did I make a negative remarks about others,? You seem far more guilty of it than I (for example, your pointlessly mention of me in comment 23 here, and have done such things in the past, even in discussions in which I had yet to comment), although I do my best to ignore it.

  65. Stan E. Delo December 10, 2012 8:50 pm


    Well just for starters, you seemed to be suggesting that a very experienced patent attorney didn’t know what he was talking about in re computer science and programming issues, when in fact he is probably the best guy around to ask about exactly that. Have you ever heard of misdirection?

    It is the magician’s best friend.
    Never saw a thing.


  66. Bobby December 10, 2012 10:46 pm

    Again, I asked for a specific instance, while you didn’t deliver such a thing. The closest I can recall is stating that he doesn’t seem to understand about what is and isn’t math. I have often deferred to statements by Donald Knuth (and others, although I don’t think I’ve mentioned anyone else with a stronger background, largely because very few examples are living today), who certainly has a stronger background in math and software than Gene and strongly disagrees.

    Furthermore, I’m not sure why Gene would be considered such an expert. His degrees are in electrical engineering and law. I’m aware that his practice involves a great deal of software patents, and he has claimed to have some degree of programming experience, although I’ve never gathered much in specific details. That said, I place value in more than just credentials, and do my best to separate the argument from the party making it as well as possible. If I do bring them into the mix, I try to at least make sure they are also making a very well reasoned argument when I quote them.

    Regarding Gene specifically, I think he is often a well spoken poster, and out of clear proponents of strong ‘IP’ systems, he is one of the most capable of having nuance. He clearly cares very deeply about his profession, although I think that passion is often misdirected and can undermine his ability to make fully lucid arguments. Were he to direct his efforts in responding to critical views of patents towards combating abuse by patent holders (something important to the health of the system), he could be one of the most positive actors in the field. Also note that I’m not saying that he doesn’t attack abuse, but rather that I wish he would put more of his focus on that area.

  67. Anon December 10, 2012 11:00 pm


    You obviously are not conversant with the 101 jurisprudence, nor the history of the decisions.

    Follow the decisions, look at which justices were in the majority/minority positions and note the cabining was effected in Bilski.

    Then understand that Benson was easily one of the worst written patent law decisions of all time, noting the egregious amount of unnecessary (and flat out wrong) dicta.

    Finally (as this is an art field I am intimately familiar with), Diehr was in fact a blessing on software – sure software to cure rubber, bit software nonetheless. All other elements in Diehr were old in the art and the critical feature was provided by the software capability to run nearly instantaneous readings and recalculations on the Arrhenius equation. Yes math was involved, but unlike the “popular culture”, software is in fact not math. In fact, if software were math, you would not be able to copyright it.

  68. Bobby December 10, 2012 11:57 pm

    “All other elements in Diehr were old in the art and the critical feature was provided by the software capability to run nearly instantaneous readings and recalculations on the Arrhenius equation.”
    Actually, the ability to get instantaneous readings was due to the thermocouple (software isn’t capable of that), and the Diehr decision doesn’t consider anything other than 101 eligibility, only making passing mentions of prior art. They repeatedly state that the invention as a whole must be considered, and the invention minus the use of a computer would certainly be patentable subject matter. Thus, the real thing to take from the decision is that involving a computer or math or software in an otherwise patentable process does not unpatentable subject matter make.

    ” In fact, if software were math, you would not be able to copyright it.”
    I’m not making a claim that software is copyrightable, and I’m not entirely sure that something consisting of just math would not be copyrightable, so your premise is not valid. I’m sure there are number of math tests and math worksheets that consist entirely of math. Their ability to be copyrighted beyond layout would derive from being an original collection of mathematical data (an individual math problem probably wouldn’t be copyrightable). In a nutshell, a math worksheet is copyrightable because originality is involved in the choice of math problems, and thus something like a times table that lacks such originality would not be copyrightable. Software would likely be seen to have the same originality in the choice of what to include, the syntax, and so forth. The equivalent to a times table in software would be a routine implementation of Hello World in a particular language, and other small snippets of code that are routine.

  69. Stan E. Delo December 11, 2012 12:27 am

    Of course I didn’t supply a specific instance…. That was not what I was trying to get to. Another thing to consider is that you seem to be stuck in second person mode. There are also first and third person ways to look at the world.

    Please leave Gene out of any of our further discussions if you can possibly help it. I feel very fortunate to be able to express my opinions here, and try to find a better way, which I tend to think that most of us are really interested in. Everyone wins when things go right, but sometimes they Don’t go right. What now Mr.Science?

    How do you PubPat or ACLU your way over That software Rainbow Bridge? Sorry, but I remain skeptical.


  70. Ron Hilton December 11, 2012 1:36 am

    I studied Knuth in my computer science classes, and of course he was a great pioneer in the field of algorithms, which in a pure, abstract form can certainly be considered a branch of mathematics. Pure math is not patentable because it is abstract and lacks utility. Pure mathematicians eagerly disclaim any hint of practical usefulness in their art, and indeed they view it as a form of fine art, a pursuit of abstract beauty and symmetry as opposed to usefulness in the real world. But software is not math in that sense. Software uses applied math to achieve practical utility. As I have already explained, it must be runnable on a computer or at least stored on a computer-readable medium. Utility is the only issue that makes pure math patent-ineligible. Math is one of the crowning creations of the human mind, so it is not a lack of novelty or non-obviousness that disqualifies math as patentable subject matter.

  71. Bob December 11, 2012 8:10 am

    You accused me of attacking Gene and others, so I asked for evidence so I might be able to defend myself. If there is no evidence, I can’t rebut it. Also, I don’t understand your second person argument. Second person is you, so it seems you are accusing me of writing in the style of choose your own adventure books.

    As to Gene, I do my best to leave him out of it. I only mentioned him here to show that I don’t have a disrespectful view of him.

    The problem is not lack of utility. Funk brothers had utility, but the problem was that it preempts a fundamental concept, and is thus too much of a detriment to competition with too little gained by society.

  72. Roland December 11, 2012 9:14 am

    Rereading the article, to me Gene hasn’t really answer his question “So what is fueling the anti-software patent hatred and ridiculous claims that software patents are somehow evil?” Yes the article stated an economic case for having software patents but not why they are so strongly opposed particularly by those who portray themselves as practitioners.

    As someone who designs and delivers IT solutions, I have concerns about software patents because I appreciate that my solutions could unintentionally infringe someone else’s patent(s) either through my own thinking or through the detailed thinking and design work of individual software engineers working on some aspect of the solution. The question to me is therefore, do I give into my fears – fed by reading too much into the high profile patent litigation and “forfeit the future” by doing something else like stack shelves in the local supermarket or do I carry on regardless and treat my first infringement letter as confirmation of success? – and hope that I’ll get to keep my shirt!.

    To add to my worries, I’m now aware that some of my work could in itself be patentable and hence I should be keeping my eye’s open so as to spot these elements and so make time (and money) available to protect these gems.

    Also as a practitioner, I get ’emotional’ about software patents that (to me are):
    1. Obvious to a person having ordinary skill in the art of software design and development.
    2. Trivial
    3. Impinging upon work I’ve been (or am) involved in and hence could regard myself as an expert.
    (Aside: I’m sure there are others, but these three types came readily to mind).
    Finally, I have the distinct feeling that my understanding of what qualifies as a software method patent is incomplete and a little hazy.

    So yes it would be nice not to have the above worries, but before someone waves the magic wand and abolishes software patents could any one confirm whether I would still be able to earn sufficient to support the lifestyle I’ve become accustomed to?

  73. Anon December 11, 2012 9:58 am


    the ability to get instantaneous readings was due to the thermocouple

    The thermocouples were old in the art. I worked in this art field. Trust me, the difference was the software integrating the thermocouple feeds and recalculating at a rate that was not done before. Software was the key.

    Yes – the “as a whole” is critical, but this too works against your viewpoints as this was a repudiation of Benson’s analysis in which Benson chopped the claim up and “forgot” pieces (the infamous ‘abstract’ reentrant shift register component of claim 8).

    Arguing with me on a technical point I know well only lessons my view of your other positions.

    and I’m not entirely sure that something consisting of just math would not be copyrightable, so your premise is not valid.

    My premise is valid. You cannot copyright math. Collection of data (in itself) is not copyrightable. Math itself is not copyrightable. Period. Layout, choice and format may be, but that would be ultra thin and would not be on the math itself. Choice of what to include and syntax are indeed expressive – but that is not math.

    It comes down to this: Copyright and patent each protect intellectual property in different ways. Copyright protects expression (and is susceptible to fair use and independent creation) while patent protect utility, Software avails itself of both protections. The expressive portion earns copyright protection when captured in fixed media. The utility portion may earn a patent if an application is filed and the patent laws of utility (naturally), novelty, nonobviousness and the rest are met. Software simply is not math. It may be considered applied math, but that is a completely different animal because it is applied to a utility, which firmly places it in the patent realm.

    This is not something that is debatable. It is what it is. Your opinion, and any opinion by the masses of uninformed (from a legal standpoint) of programmers who “son’t like patents simply does not change how the law works.

  74. Bob December 11, 2012 12:25 pm

    What is and isn’t novel isn’t relevant because the opinion doesn’t address it. The court calls it a patent for a process of curing rubber that happens to involve a digital computer. The decision read that the “happens to involve a computer” portion of the patent doesn’t invalidate otherwise patentable subject matter. You seem to be reading in details not actually found in the opinion.

  75. Ron Hilton December 11, 2012 12:37 pm

    As a software developer and enterprenuer who has been sued for patent infringement, let me offer some perspective. If it’s worth someone’s expense and effort to sue you, that means you’re on to something of value. It’s likely that what you have developed has additional value over and above what you may or may not be infringing. That gives you leverage, IF you have made the effort to protect your IP using the available tools of copyright and patent. The best defense is a good offense. My suit was eventually settled with my company being acquired by the plaintiff, and a royalty payment to me personally for one of my own patent applications. I didn’t make enough to retire, but my lifestyle was not adversely impacted. And I learned some valuable lessons about how to succeed better if and when I encounter a smiilar problem/opportunity in the future. It’s not a perfect system and not a perfect world. Justice is not always perfectly served. But it’s better than anything else that’s been tried, including the kumbaya free-for-all socialist utopian fantasy of FOSS. As BD correctly noted, FOSS plays straight into the hands of the major corporate players, leaving the individual software developers to lap up the crumbs.

  76. Stan E. Delo December 11, 2012 2:07 pm

    Allow me to try to explain-

    First person singular would be an “I did this or that”, where first person in general could also be a “we did this or that.”

    Second person would be more like “He/She/They did this or that.”

    Third person would be a more distanced perspective, where the author simply tells what happened to “others” in their narrative.


  77. Anon December 11, 2012 4:00 pm

    You seem to be reading in details not actually found in the opinion

    With all due respect Bobby, you seem to be reading the decision in a complete vacuum.

    I will take my understanding of the case any day of the week over yours as to either the import of the case itself or how that case will affect any future cases.

    If you are going to study and learn from law, you cannot treat cases as “soundbytes” divorced from the context in which they arise.

  78. Bobby December 11, 2012 5:55 pm

    “You cannot copyright math. Collection of data (in itself) is not copyrightable. Math itself is not copyrightable. Period. Layout, choice and format may be, but that would be ultra thin and would not be on the math itself. Choice of what to include and syntax are indeed expressive – but that is not math.”
    Collections of data are copyrightable, assuming there is some originality to the choice of data and/or how it is arranged. The data itself is not copyrightable, but the collection is. A good example would be recipe books. Recipes themselves are generally not copyrightable, but a recipe book contains some but not all known recipes, and may have involved choices in the order of those recipes.

    More importantly, a CPU is not capable of doing anything other than math, and if something consists of nothing but math, it is itself math. Even if you for some reason don’t buy that, perhaps because of a flawed understanding of what math is, we can deal with something broader. Software is a mental process. There is no reasonable denial of that, and mental processes are not patentable. Before we had digital computers, ‘computer’ was a job title, and humans did many of the same operations that computers did now, and those processes performed in the heads of human beings were clearly mental processes. Obviously, they were quite a bit slower at it, but that’s mostly due to advances in hardware, not ‘software.’ Both then and now the same elements that defines a mental process are involved. Only information goes in and only information comes out.

    “It may be considered applied math, but that is a completely different animal because it is applied to a utility, which firmly places it in the patent realm.”
    Applied math is still math, which is not patentable. Likewise, applied laws of nature are not patentable, as seen in Funk Brothers. There must be a non-trivial portion of the patent which consists of patentable subject matter.

    “This is not something that is debatable. It is what it is.”
    Actually, the fairly recent case of CyberSource Corp. v. Retail Decisions, Inc seems to suggest there is still some debate.

    “With all due respect Bobby, you seem to be reading the decision in a complete vacuum.”
    Actually, I’m at least familiar with a number of cases on what is and isn’t patentable subject matter, although it’s been a while on a great deal of the pre-Benson ones (which don’t carry as much weight anyway, since they predated a change in patent law). The general trend seems to pretty much line up with the MoT test, although some decisions are a bit squeemish in drawing bright line rules. The most current understanding is that abstract ideas are not patentable, and that while the MoT test is helpful, it’s not the sole test. That said, I suspect that, absent a major change in viewpoints or legislation, processes that fail MoT but are patentable subject matter will be merely hypothetical, at least once it reaches SCOTUS.

    So, if I am reading the opinions in a vacuum, it’s that I’m isolating myself from issues that are not actually part of or relevant to the case, such as what was and was not prior art. That has importance regarding the validity of the particular patent in areas other than 101, but not regarding the questions answered by the case.

    Also, when I said that “the ability to get instantaneous readings was due to the thermocouple,” I made no claim that the thermocouples were new. I was pointing out the factual inaccuracy of the statement. The thermocouples were the element that enabled the quick readings, and the digital computer was what allowed them to be quickly used for recalculations. You are reading things that are not there in my own simple sentences.

    “I will take my understanding of the case any day of the week over yours as to either the import of the case itself or how that case will affect any future cases.”
    I would certainly hope so. If you don’t think your argument is the better argument and you are still making it, you would have to either be insane or an attorney. I prefer my understanding, at least until you make a point that compels me, in which case my understanding will no longer be my understanding.

    I’m pretty sure I’ve already replied to your post, but it’s stuck in the filter because it contained a wikipedia link to grammatical person. I’d advise looking it up for a refresher in the meantime.

  79. Stan E. Delo December 11, 2012 7:41 pm

    Hi Bobby-

    It can stay stuck as far as I am concerned. At least you might have glanced at it for a minute or two. I really don’t think that I need any lessons on how to spin my narratives. That is a very personal sort of thing. Consider the case of Ernest K. Gann’s remarkable book entitled Fate Is The Hunter for instance, where the Person perspective changes now and then. Past and present.

  80. Stan E. Delo December 11, 2012 7:45 pm

  81. Bobby December 11, 2012 8:12 pm

    The lesson is that you don’t understand what first, second and third person mean. First is I or we, second is you, third is he, she, they, or it. You made an error and repeated it, and I’m still not quite sure what your point was anyway.

  82. Ron Hilton December 11, 2012 9:02 pm

    Bobby is correct about grammar. I’m seizing this opportunity to agree with him since it happens so rarely 🙂

  83. Stan E. Delo December 11, 2012 10:33 pm

    I would submit that it makes a very large difference in just how you use grammar. Your results might vary a bit, which is Not my fault. On your own there Bobby. Language is what sets us apart from other creatures on this particular planet, and we are very fortunate to have such a good planet to live on for a little while.

    Fate is what you make of it.


  84. Anon December 12, 2012 8:05 am


    You have drunk far too much of the kool-aid for us to have a conversation on patent law. You spout the software is [blank] mantra without realizing what patents cover, or for that matter, what IP is for.

    Sorry, but I do not see the point in trying to hold a conversation with you when you are speaking gibberish and thinking that you are speaking intelligibly about legal matters.

  85. Bobby December 12, 2012 8:56 am

    I’m not claiming that grammar is not important. Your misuse of grammar is part of why I’m having trouble grasping your complaint against my posting. So please, restate your original complaint about my grammar usage in a lucid manner.

    Patents care legal monopolies over inventions granted for a new and novel invention, and ‘IP’ isn’t for anything, since it’s a bunch of loosely connected laws with some related principles. The reason the patent system exists is to attempt to further progress within different fields of art by granting legal monopolies on inventions that would be non-obvious to a PHOSITA. Because the goal is to foster progress, special care must be taken so that fundamental building blocks are not eligible for patents, which is why abstract idea, laws of nature, and natural phenomenons are not patentable subject matter.

  86. Ron Hilton December 12, 2012 9:42 am

    If the concern is abuse of a patent-supported monopoly, then I would repeat my suggestion that the answer lies in incremental antitrust reform, not radical patent reform/abolition or the tortured redefinition of basic terms like ‘math’.

  87. Bobby December 12, 2012 10:20 am

    I’m not asking for reform or redefinition, at least not in this particular argument. Math is not patentable, and software is math. A lot of the confusion seems to stem form the facts that a great number of people have a misunderstanding of what math entails and/or what exactly computers do (hint: they compute). The problems we have today is that the CAFC has warped Diehr into saying something it didn’t and expanding patents to a place they clearly have no business going, and we are trying to sort that mess out.

  88. Anon December 12, 2012 11:11 am


    Do you understand the fundamental difference between math and applied math?

  89. Gene Quinn December 12, 2012 11:34 am


    I’ve finally had enough of you. I’m not going to tolerate this nonsense any further. We have been over this ground many times. Software is not math and anyone who argues to the contrary is taking a false position based on emotion rather than fact.

    Only those who are ignorant would ever claim software is math.


  90. Stan E. Delo December 12, 2012 1:39 pm

    It really doesn’t matter any more Bobby. All that really matters is clear and accurate communication. I think I prefer discussing walruses and sealing wax and Kings and many other things with folks like BD and Anon and Step Back. Language is what allows humans to deceive others, which is somewhat unique to our legacy. I have never had a cat or a dog lie to me, or try to mislead me. They are simply not capable of doing that most times.