Strawmen and Urban Legends
rjack
strawman to be greatly feared -- the computer software patent.
It appears that a computer “software patent” is a term that has entered
the World without benefit of the federal courts or Congress. A Google
search (admittedly not authoritative) reveals no court opinion or
federal statute that uses the phrase “software patent”. Especially
telling is a search of published opinions of the C.A.F.C. Searching for
the caption of the Federal Circuit’s official opinions and the term
“software patent” reveals no hits:
“United States Court of Appeals for the Federal Circuit” “software patent”
This is so because there is no such thing as a computer software patent.
Software code in isolation is not patentable. It may only be used as a
step in conjunction with other claims.
The Supreme Court’s decision in Diamond v. Diehr, 450 U.S. 175 makes
this point crystal clear:
“Our conclusion regarding respondents' claims is not altered by the fact
that in several steps of the process a mathematical equation and a
programmed digital computer are used. . .
In contrast, the respondents here do not seek to patent a mathematical
formula. Instead, they seek patent protection for a process of curing
synthetic rubber. Their process admittedly employs a well-known
mathematical equation, but they do not seek to pre-empt the use of that
equation. Rather, they seek only to foreclose from others the use of
that equation in conjunction with all of the other steps in their
claimed process. . .
Arrhenius' equation is not patentable in isolation, but when a process
for curing rubber is devised which incorporates in it a more efficient
solution of the equation, that process is at the very least not barred
at the threshold by 101. . .
In determining the eligibility of respondents' claimed process for
patent protection under 101, their claims must be considered as a whole.
It is inappropriate to dissect the claims into old and new elements and
then to ignore the presence of the old elements in the analysis. This is
particularly true in a process claim because a new combination of steps
in a process may be patentable even though all the constituents of the
combination were well known and in common use before the combination was
made.”
Computer code may not be patented in isolation but only claimed when
incorporated as a step in conjunction with other claims to form a truly
patentable process.
The computer “software patent” is a true urban legend . . . created to
promote an agenda for the abolishment of intellectual property.
Regis
At the EPO, software as such is also not patentable, but a computer
implemented invention can be patentable if it provides a technical
effect that goes further to the normal functions of the computer
;-)
Alexander Terekhov
leading experts on copyright law as applied to software", rjack?
regards,
alexander.
--
"Don't Buy Harry Potter Books"
rjack
That's an easy one. . . a vivid imagination and the ability to
repeatedly prattle legal nonsense ad nauseum. (that takes great stamina)
robertp...@hotmail.com
There are three Patent types, Design, Utility, and Plant.
You are correct that there is no "software patent" per se. You cannot
identify one by serial number or classification. There is no
bright-line demarcation as to what is a hardware, software, or firmware
patent. And since many systems (modems, A/D converters, DVD decoders,
etc.) can be implemented in all three, or a combination of all three,
it is ridiculous to try to classify some inventions as purely
"hardware" or "software". It simply can't be done in many cases. And
a competent Patent Attorney would be foolhardy to limit the embodiment
of an invention to only hardware or only software.
Under 35 USC 101, and as confirmed by the Federal Circuit, basically
anything under the sun is patentable, except for natural phenonenon or
mental processes.
The Patent Office expanded this mental process exception, sua sponte,
to include "mathematical algorithms".
>From that, the Patent Office devised a rubrik whereby software was
considered a computer implementation of a mathematical algorithm, and
therefore was not Patentable.
As the Federal Circuit correctly pointed out, however, the law does not
support such a construct.
However, that being said, the case law still favors "software"
inventions that produce some result - the calculation of a share price,
at the very least, it would seem.
The Patent Office is examining most of these "non-traditional subject
matter" applications with a fine tooth comb these days. 101 rejections
are the norm. Examiners are being provided with form paragraphs to
reject such inventions (particularly business method Patents or other
"nontraditional" subject matter). A lot of these form paragraphs
dredge up some pretty hoary old case law from the CCPA. It is almost
funnny, except that it can really add a lot of expense to Patent
prosecution.
So, if you want to get your "software" patent allowed, it is best not
to couch it in terms of software alone. Some end function in the real
world should be claimed. I believe the software patenting guidelines
are posted on the USPTO website. Of all the "non-traditional" subject
matter, software is probably the easiest to Patent.
I am sort of suprised that you are posting on this topic as though it
was a recent controversy. Here is an article I wrote OVER A DECADE AGO
on the subject. I mean, if the software industry hasn't been
"destroyed" by Patents now, how much longer will it take? Another
decade? --Bob.
* * * *
This article was originally published in June 26, 1995 edition of
ComputerWorld Magazine as an OpEd piece. I ended up writing and filing
one of the earliest Internet Method of Doing Business Patents as a
result of that exposure. Recall at the time, many were predicting the
ruin of the software business if software was patentable.
WHO'S AFRAID OF SOFTWARE PATENTS?
Now that the U.S. Patent & Trademark Office has given the
green light for software-related patents, some software developers have
gone ballistic. In Internet postings and other forums, they argue that
software patents will retard innovation, squash the small developer and
generally bring an end of the American Way of Life as we know it.
Underlying this concern is that, with the apparent demise
of "look and feel" copyright protection in the Lotus v. Borland case,
it appears that patents may become the best way to protect software
inventions.
I can understand why some software developers are upset.
Copyright protection does have some certain advantages, such as being
fairly inexpensive to obtain. Moreover, a case of copyright
infringement, requires proof that a defendant did some copying.
Insulating your software design staff from outside code sources may
protect you from a copyright suit. Patents, on the other hand, require
no such proof. You can be sued for patent infringement on a patent
you've never seen or heard of.
But the critics underestimate the advantages of patent
protection for software. Consider the following points:
Software Patents Were Issuing Anyway. At least now the PTO
doesn't have to pretend that they don't. By facing this issue
squarely, the Patent Office now has the opportunity to more
consistently issue valid patents in software related fields. By hiring
computer science majors (a break from long-standing PTO tradition) and
creating a dedicated Examining group equipped with "prior art" files
from the software field, the PTO has a better chance of avoiding such
embarrassments as the Compton Multimedia Encyclopedia patent.
Patents are Easier to Adjudicate. The Patent field has
over 200 years of Law and Rule making and court decisions behind it to
aid in determining the scope and validity of claims. Patent claims are
printed on a patent for all to see and interpret. In contrast, the
"look and feel" copyright doctrine, apparently now defunct, was a new,
judicially created doctrine with no precedential history. Patent
claims may be distinctly designed around. "Look and feel" is more
nebulous. Whose look? Whose feel? Patent claim interpretation is
much less dependent on which judge you get.
Other Fields Have Survived and Thrived. Despite reports to
the contrary, most technologies, including the computer arts, have
survived and even thrived under our patent system. In the technology
business, it is taken for granted that any new product carries a risk
of infringement of a patent or patents. This risk can be minimized by
performing a simple prior art search which may cost only a few hundred
dollars.
Monopolizing the Software Field with Patents Won't Work.
Proprietary formats and technologies are vigorously fought in the
marketplace. In most cases, less sophisticated competing technologies
will prevail. Consider BETA vrs. VHS, MacIntosh vrs. the IBM-PC, or
Polaroid vrs. 35 mm. In all three cases, less sophisticated
non-proprietary technology has prevailed. Any software developer who
attempts to "force" the marketplace to buy his products through patent
monopolies will eventually be history. (Bill Gates are you listening?)
Patents Don't Always Favor the "Big Guy". Consider
Microsoft and Stakker. The patent system may actually favor the small
inventor. Large Corporations may spend hundreds of thousands, if not
millions litigating a patent suit. A small company, if they can find
the right attorney, may litigate such a suit on contingency for a
fraction of that amount. Moreover, a sole inventor has a much greater
chance of eliciting jury sympathy when going up against the "big"
corporation. Consider Mr. Kerns and his intermittent windshield wiper
patent. If anything, large companies have more to fear from sole
inventors than vice versa.
Regardless of whether you favor or oppose software patents,
it appears as though they are here to stay. Unfortunately, it is not
possible to 'opt out' of the intellectual property system. The best
strategy is to establish your own portfolio and take reasonable
precautions to prevent patent infringement. If sued, your patents can
be valuable weapons to force settlement of a suit. Moreover, if you
are a small, start-up company, you should count on any possible buy-out
suitors being keenly interested in the contents of your patent
portfolio
* * *
This posting is (c) 2007, Robert Platt Bell. No, you may not copy this
onto a pay website and charge people for it, or use it sell ad space.
And yes, people have tried...
d...@soundmathtech.com
There are patents for processes, or method patents, in various
technical fields (business method patents are really a separate issue),
and today many processes can be controlled by some type of
microprocessor running some software code...
(BTW, the very first US Patent was also a process patent)
There are patents for devices, or apparatus patents, but today many
types of devices can be implemented using a microprocessor running
software code plus some peripherals.
A good example of this evolution would be Dudley's vocoder:
Vocoder ("voice coder") was invented (and patented) by Homer Dudley
of AT&T Bell Labs in early 30's. At the time it was a bunch of analog
circuitry probably taking half of the room. And it was patented as
such: analog device.
Today the grandchildren of that first vocoder are digital software
implementations of mathematical algorithms running on tiny DSP chips in
each and every cell phone...
According to those anti-swpatent folks vocoder would be unpatentable
today...
Well, what do you want from people who write software like a poem?
(but still don't understand what copyright is...) :)
Stefaan A Eeckels
d...@soundmathtech.com wrote:
> According to those anti-swpatent folks vocoder would be unpatentable
> today...
Overstating the case (like some of the anti-swpatent folk) doesn't
help.
Of course, a device that peforms a particular function, like a
vocorder, can be patented even if it uses a DSP chip and software. You
patent the complete device, not its components.
By considering a general purpose computer plus an algorithm a "device",
the typical "software patent" makes it impossible to use an algorithm
on any other computer. Some of these algorithms might be worthy of
patent protection (for example the RSA algorithm, which is neither
obvious nor trivial), but many patents have been granted for algorithms
that were obvious and trivial (like using XOR to flash a cursor).
Unless the patent offices manage to understand how writing software
works, we're better off with copyright protection.
> Well, what do you want from people who write software like a poem?
> (but still don't understand what copyright is...) :)
Most programmers don't write software like poems. It's written much
like one would "write" mathematical formulae. And quite clearly, we
would not have seen much progress in mathematics if patents would have
been granted on Newton-Raphson or FFTs.
One of the problems is that a lot of people discoursing on software
patents don't know what software is.
--
Stefaan A Eeckels
--
Ninety-Ninety Rule of Project Schedules:
The first ninety percent of the task takes ninety percent of
the time, and the last ten percent takes the other ninety percent.
d...@soundmathtech.com
Stefaan A Eeckels wrote:
> Of course, a device that peforms a particular function, like a
> vocorder, can be patented even if it uses a DSP chip and software. You
> patent the complete device, not its components.
That's a clever suggestion :) Patent a complete device e.g. cell phone,
HDTV...Boeing 747...
No matter that those "devices" are combinations of hundreds, if not
thousands, of patented technologies developed over decades...
> Unless the patent offices manage to understand how writing software
> works, we're better off with copyright protection.
>
My dear little friend... I can assure you that the USPTO has enough
people who understand software, they just need to spend more time on
each application.
The EPO is already doing a great job as far as "software patents" are
concerned.
> Most programmers don't write software like poems. It's written much
> like one would "write" mathematical formulae.
Oh yeah, just like mathematical formulas... When was the last time that
you wrote a "mathematical formula" ? High school calculus ?
> And quite clearly, we
> would not have seen much progress in mathematics if patents would have
> been granted on Newton-Raphson or FFTs.
>
Oh yeah, a patent on a fast practical method of computing well-known
Fourier transform would have a catastrophic impact on the progress of
the entire field of mathematics.
Your logic is flawless...
> One of the problems is that a lot of people discoursing on software
> patents don't know what software is.
>
This is so evident from your comments. Why don't you go and take some
elementary CS and EE classes ?
Stefaan A Eeckels
d...@soundmathtech.com wrote:
>
> Stefaan A Eeckels wrote:
> > Of course, a device that peforms a particular function, like a
> > vocorder, can be patented even if it uses a DSP chip and software.
> > You patent the complete device, not its components.
>
> That's a clever suggestion :) Patent a complete device e.g. cell
> phone, HDTV...Boeing 747...
> No matter that those "devices" are combinations of hundreds, if not
> thousands, of patented technologies developed over decades...
You don't patent a technology, you patent an invention, which has to be
described in such a way that a person "skilled in the art" can make and
use the invention (which BTW happens to be one of the problems of
so-called software patents, because they are never described using the
terms or methods used by software professionals to describe or document
software).
The fact that an invention uses components that are not protected by
patents (though at one time they might have been patented) does not
preclude it from being patented. The fact that a device is patented
does not imply that all its components are themselves patented.
> > Unless the patent offices manage to understand how writing software
> > works, we're better off with copyright protection.
> >
> My dear little friend... I can assure you that the USPTO has enough
> people who understand software, they just need to spend more time on
> each application.
In any case, the results aren't stellar.
> The EPO is already doing a great job as far as "software patents" are
> concerned.
And you are an authority on these matters.
> > Most programmers don't write software like poems. It's written much
> > like one would "write" mathematical formulae.
>
> Oh yeah, just like mathematical formulas... When was the last time
> that you wrote a "mathematical formula" ? High school calculus ?
I am not a mathematician (I am a crystallographer by training and a
programmer by trade), so I hardly ever engage in writing down theorems
or proofs. That, however, has nothing to do with the fact that software
is not written as a poem, but rather as a set of logically coherent
statements in a restricted language, much more like mathematics.
> > And quite clearly, we
> > would not have seen much progress in mathematics if patents would
> > have been granted on Newton-Raphson or FFTs.
>
> Oh yeah, a patent on a fast practical method of computing well-known
> Fourier transform would have a catastrophic impact on the progress of
> the entire field of mathematics.
> Your logic is flawless...
I think you're missing the point - progress in certain fields of
endeavour occurs through sharing of ideas and discoveries, rather than
by granting monopolies on them. Finding the right balance between the
ability to benefit (economically) from software inventions and the
stifling effect of a monopoly is not easy.
Specifically in the case of software patents, the chasm between the way
software is described, specified and written, and the language into
which a software invention is cast for the sake of patentability makes
it very difficult to know whether a particular algorithm is patented,
and to develop workarounds. In addition, the value of the patent after
it has expired is seriously reduced by the absence of formal
specifications, source code or a reference implementation.
> > One of the problems is that a lot of people discoursing on software
> > patents don't know what software is.
> >
> This is so evident from your comments. Why don't you go and take some
> elementary CS and EE classes ?
Aparently, they didn't teach you much about the (lack of) value of
argumentum ad verecundiam and argumentum ad personam.
--
Stefaan A Eeckels
--
The mushroom philosophy of product sales and support:
Keep your customers in the dark, feed them a lot of manure and
hope they will grow and flourish.
robertp...@hotmail.com
> The EPO is already doing a great job as far as "software patents" are
> concerned.
Yes, they reject most of them. In many overseas countries, the idea
that software being Patentable is only slowly being accepted. At the
time the U.S. finally stopped pretended these Patents weren't issuing
and addressed the issue head on, our European counterparts were still
saying "NO patents on Software!".
A decade later, they are realizing their error.
I am not sure where you guys have been for the last 20 years, but this
is an OLD, OLD issue. Patenting of Software is no longer up for
discussion, it arrived in 1995.
So get over it. It hasn't "destroyed" the software business. In fact,
it has protected many small developers from larger companies, like
Microsoft.
If you don't have a Patent on your software invention, Bill Gates can
take it, for free, and give you NOTHING in return.
Patents protect the little guy.
d...@soundmathtech.com
robertp...@hotmail.com wrote:
> Patenting of Software is no longer up for discussion, it arrived in 1995.
>
Actually, much much earlier than that. The most famous "software
patent", RSA patent, was granted in 1983.
It is quite disturbing to read that so many people were unhappy about
the fact that RSA patent had some teeth and actually made money for its
inventors... Maybe those unhappy folks should turn their attention to
corporate CEO's salaries and bonuses ?
>
> If you don't have a Patent on your software invention, Bill Gates can
> take it, for free, and give you NOTHING in return.
>
> Patents protect the little guy.
Wishful thinking... After the recent Ebay decision by SCOTUS patents
protect nothing.
MS was already stealing each and every good idea, now they can do it
without fear of being shut down... The whole purpose of the so-called
"Patent Reform" is to bail out serial infringers - all of the big tech
companies.
Lee Hollaar
>
>robertp...@hotmail.com wrote:
>> Patenting of Software is no longer up for discussion, it arrived in 1995.
>>
>
>Actually, much much earlier than that. The most famous "software
>patent", RSA patent, was granted in 1983.
Actually, much much earlier than that. See United States patent
3,568,156, "Text Matching Algorithm," granted on March 2, 1971,
to Kenneth Thompson (who went on to write an operating system of
some repute).
Roger Schlafly
> Actually, much much earlier than that. See United States patent
> 3,568,156, "Text Matching Algorithm," granted on March 2, 1971,
> to Kenneth Thompson (who went on to write an operating system of
> some repute).
There were also software patents long before that. Samuel F. B. Morse
got US Patent 1647 in 1840 for the Morse Code. Its reissued version
included:
Claim 5. The system of signs consisting of dots and spaces, and of dots,
spaces, and horizontal lines, for numerals, letters, words, or sentences,
substantially as herein set forth and illustrated, in combination with
machinery for recording them, as signals for telegraphic purposes.
http://www.google.com/patents?vid=USPATRE117
The US Supreme Court upheld that claim in 1853.
http://www.law.pitt.edu/madison/patent/supplement/oreilly_v_morse.html
You can also read Morse's original claims here.
http://www.google.com/patents?vid=USPAT1647
Lee Hollaar
>"Lee Hollaar" <hol...@antitrust.cs.utah.edu> wrote:
>> Actually, much much earlier than that. See United States patent
>> 3,568,156, "Text Matching Algorithm," granted on March 2, 1971,
>> to Kenneth Thompson (who went on to write an operating system of
>> some repute).
>
>There were also software patents long before that. Samuel F. B. Morse
>got US Patent 1647 in 1840 for the Morse Code.
But the one I cited is for "software" as we normally use the term
now -- something to control a computer -- and actually contains a
program implementing the method in 7090 assembly language (which
the printed wrong, putting a label on every line).
And it doesn't try to hide what it is. Note the title:
"Text Matching ALGORITHM".
Roger Schlafly
> But the one I cited is for "software" as we normally use the term
> now -- something to control a computer -- and actually contains a
> program implementing the method in 7090 assembly language (which
> the printed wrong, putting a label on every line).
> And it doesn't try to hide what it is. Note the title:
> "Text Matching ALGORITHM".
That's right, but most of the arguments against the patentability of
software would seem to apply to Morse Code. And yet the Morse
Code patent is a famous patent that has been litigated, enforced,
and held up in textbooks as an exemplary patent.
This blog lists some other early software patents.
http://igdmlgd.blogspot.com/2005/12/evolution-of-software-claims.html
Raugiel
focus with copyright infringement tends to be on making copies of
programs and selling them or using them for free, copyright protection
also gives the owner the exclusive right to create derrivative works.
Obviously a copyright is not a patent and these two forms of protection
are somewhat different, but are there any reasons to attempt to enforce
a copyright rather than, or in addition to, a patent for software
(besides the fact that copyright protection is life long...).