a computer program is not a patentable invention

On 16/04/2010 00:56, Jon Kirwan wrote:
> On Thu, 15 Apr 2010 16:21:00 -0400, Walter Banks
> <walter@bytecraft.com>  wrote:
>
>> <snip>
>> To use both the book analogy in both the patent and copyright
>> sense. The result may be a far stronger protection for software.
>> I know about quite a few software patents but I know of very
>> few that generated enough revenue to pay for the costs of
>> protecting and enforcing the patent. I only know of two that
>> actually made real money.
>>
>> Copyrights are a different matter. There are lots of precedents
>> and the courts know how to handles cases of rewritten
>> to circumvent as well as assign monetary awards. Depending
>> on country the copyright protection can last a long time to a
>> very long time.
>>
>> There are several current very interesting open cases where
>> copyrights and not patents may affect software. The most
>> interesting one that I currently know about is a standard
>> 40+ year old reference book of  polynomial constants.
>>
>> Dropping software patents may result in software
>> protection with teeth.
>>
>> Regards,
>>
>> Walter Banks
>
> Walter, one doesn't need to guess about this last comment of
> yours, do they?  Does Europe permit software patents on the
> same scope as the US?  If not, then wouldn't their experience
> already help inform us about what might happen with "dropping
> software patents?"  I don't know, but it seems that there is
> information in the rest of the world to help shed light in
> North America.
>
> Jon

Europe does not permit software patents in anything like the way the US 
does.  There have been some patents awarded in European countries that 
are arguably software patents, and there have been calls to allow 
US-style software patents (from a few big companies), and campaigns to 
make sure they remain blocked (by all other interested parties).

Over here, software is covered by copyright law, which (for all its 
failings) is still the best solution for all parts.

Patents were introduced for the benefit of small inventors.  Without 
patents, the inventor could either build up production themselves - 
profiting from the idea, but only making small quantities of the device 
and thus limiting the public good.  Or they could give the idea to a 
large company for mass production to the public.  But without patents, 
there was nothing to stop anyone making use of the invention without 
paying anything back to the inventor.

To get a patent, you had to invent something new, useful, implementable, 
and non-obvious to other experts.  There was a time when these criteria 
were enforced.

It's obvious from this that software does not need patent protection any 
more than books or music - once you have a single implementation of the 
software, there is no need for mass production.  Publishing and 
distribution already has copyright regulation.

In the USA, patents these days are almost entirely registered by large 
companies, not small inventors.  The checks for validity are almost 
worthless - you pay your money, and you get your patent.  It is left for 
later courts to decide whether or not the patent is valid.  These 
patents are then used as weapons of defence or aggression between the 
big companies and against smaller rivals or upstarts.  Since you have a 
legal system that generally costs vast sums of money for suit defendants 
(whether they are innocent or not, and whether the patent is valid or 
not), patents are basically a legalised protection racket.

Software patents make this far worse, since companies can easily 
register all sorts of broad patents, and typical software developers 
have no practical way of knowing if the code they write infringes on 
patents that they have never heard of, and are almost certainly invalid. 
  The developers in this case are in no way "stealing" from the patent's 
owner, or benefiting from the patent owner's work (if indeed they did 
any real work for the patent), since they wrote their code without 
knowledge of the patents.

Big companies lose out because of the cost of their army of lawyers and 
arsenals of patents.  Small companies lose out because they either pay 
their own army of legal experts, or they risk getting sued into oblivion 
if they get too successful.  The only winners are the lawyers, the 
patent trolls, and the occasional patent holder who strikes it lucky 
with a truly useful and economically successful patent.

There are occasional areas in which patents /do/ make sense - drug 
research is an oft-quoted example since there the big companies pay a 
great deal of money to develop the drugs covered by the patents.  But in 
most cases, innovation, economic growth, consumers and companies would 
be far better served by scraping patents entirely.  A good start would 
be a gradual reduction in the time for patents down towards a couple of 
years (with exceptions such as ten years for drug patents).


The patent situation in Europe is not nearly as bad, but there is 
progression towards the American mess.

Jon Kirwan wrote:

> On Thu, 15 Apr 2010 22:22:46 -0700, I wrote:
>
> >I wasn't thinking so much about analogy to other business
> >areas _within_ the North American continent, but to the same
> >business areas outside of it.  Which is why I asked though
> >you had provided such examples.
> >

Your questions caused be to think about the differences between
software patents and copyrights. To use a clearer example.
Remember I am not a lawyer but this is the way I understand
it.

Assume that while writing a math package you discover a
completely new new way of doing a square root. You register
the copyright for the math package and you patent the method
you used to do the square root.

You now have full control of the duplication and distribution
of the math package and if anyone copies it in whole or in part
you have various legal recourses including damages.

The square root patent  on the other hand could be used in many
math packages and applications. You could then license individual
companies to use it and by agreement receive compensation.

Where this gets murky is what would have happened if you only
copyrighted the math package. After 15 or 17 years you would
still have the copyright and presumably be able to enforce the
distribution in whole or in part. That would mean someone
who only wanted to use the square root part would need to
come to an agreement with you to be able to do so.

That is why I made the comment about "protection with teeth"
it takes a long time for the material that is copyrighted  to
be in the public domain. The damage awards in the music industry
are examples of just how significant copyright violations can be.

Software patents started to be issued at a point when the software
industry was very young and it wasn't clear if what was important
was process pieces which could be bought and sold like the
components of a library or the complete works like na spreadsheet.

As recently as the mid 80's software tools commonly licensed
libraries as a separate document from the translation tools. There
are still some library only companies out there.

w..




--- news://freenews.netfront.net/ - complaints: news@netfront.net ---

David Brown wrote:
<snip>
> There are occasional areas in which patents /do/ make sense - drug 
> research is an oft-quoted example since there the big companies pay a 
> great deal of money to develop the drugs covered by the patents.  But in 
> most cases, innovation, economic growth, consumers and companies would 
> be far better served by scraping patents entirely.  A good start would 
> be a gradual reduction in the time for patents down towards a couple of 
> years (with exceptions such as ten years for drug patents).
>
> The patent situation in Europe is not nearly as bad, but there is 
> progression towards the American mess.

I agree 100% with your whole analysis.

yg
-- 
http://ygdes.com / http://yasep.org

On 16/04/2010 12:47, whygee wrote:
> David Brown wrote:
> <snip>
>> There are occasional areas in which patents /do/ make sense - drug
>> research is an oft-quoted example since there the big companies pay a
>> great deal of money to develop the drugs covered by the patents. But
>> in most cases, innovation, economic growth, consumers and companies
>> would be far better served by scraping patents entirely. A good start
>> would be a gradual reduction in the time for patents down towards a
>> couple of years (with exceptions such as ten years for drug patents).
>>
>> The patent situation in Europe is not nearly as bad, but there is
>> progression towards the American mess.
>
> I agree 100% with your whole analysis.
>

It's not often that happens!  Usually I'm considered a bit extreme when 
I write that sort of rant...

mvh.,

David

On 16/04/2010 12:18, Walter Banks wrote:
>
>
> Jon Kirwan wrote:
>
>> On Thu, 15 Apr 2010 22:22:46 -0700, I wrote:
>>
>>> I wasn't thinking so much about analogy to other business
>>> areas _within_ the North American continent, but to the same
>>> business areas outside of it.  Which is why I asked though
>>> you had provided such examples.
>>>
>
> Your questions caused be to think about the differences between
> software patents and copyrights. To use a clearer example.
> Remember I am not a lawyer but this is the way I understand
> it.
>
> Assume that while writing a math package you discover a
> completely new new way of doing a square root. You register
> the copyright for the math package and you patent the method
> you used to do the square root.
>

Don't forget that you can only register such a patent in the USA.  No 
other country allows something like that.

> You now have full control of the duplication and distribution
> of the math package and if anyone copies it in whole or in part
> you have various legal recourses including damages.
>
> The square root patent  on the other hand could be used in many
> math packages and applications. You could then license individual
> companies to use it and by agreement receive compensation.
>
> Where this gets murky is what would have happened if you only
> copyrighted the math package. After 15 or 17 years you would
> still have the copyright and presumably be able to enforce the
> distribution in whole or in part. That would mean someone
> who only wanted to use the square root part would need to
> come to an agreement with you to be able to do so.
>

People can license all or part of code under whatever terms they want - 
patents don't have to be involved at all.  Copyright is what gives you 
protection and lets you enforce these licenses.

> That is why I made the comment about "protection with teeth"
> it takes a long time for the material that is copyrighted  to
> be in the public domain. The damage awards in the music industry
> are examples of just how significant copyright violations can be.
>

The damage awards in the music industry are examples of just how far the 
US laws and/or lawyers are from reality.  These cases, and the music 
industry's attitude to and handling of file sharing, is about greed - 
they don't want to change a very lucrative business and see lawsuits as 
a way of scaring people and maybe squeezing a bit more out of music 
lovers.  Steadily more musicians dislike their tactics, and very few 
consumers approve.  They are trying to label a very large proportion of 
the otherwise-ordinary citizenry as criminals, do nothing to stop /real/ 
issues such as commercial bootlegging, and are making it harder for 
honest consumers to trust them.  How anyone can thinkdamage awards of 
hundreds of thousands of dollars for sharing a dozen songs is 
"reasonable", is beyond my comprehension.

> Software patents started to be issued at a point when the software
> industry was very young and it wasn't clear if what was important
> was process pieces which could be bought and sold like the
> components of a library or the complete works like na spreadsheet.
>
> As recently as the mid 80's software tools commonly licensed
> libraries as a separate document from the translation tools. There
> are still some library only companies out there.
>
> w..
>
>
>
>
> --- news://freenews.netfront.net/ - complaints: news@netfront.net ---

David Brown wrote:
>> I agree 100% with your whole analysis.
> It's not often that happens!  Usually I'm considered a bit extreme when 
> I write that sort of rant...
I know how it feels ;-)

And i've seen through the years that patents don't make business sense anymore.
It's as if the governments sold bazookas to the population so people can
defend themselves : it does not stop criminality, colateral damages increase,
it makes the weapons manufacturers happy and the government says "it has done
something for the citizen's security".

And I know that, like shit, innovation happens,
if you need patent "protection" it's not innovative.
An inventor invents, a manufacturer manufactures.
The patent's idea of an inventor getting rich because
he sells his patents to a big corp is not false,
but it's so rare, maybe one per 100K patent.
If an inventor gains 1M$ for selling one patent,
for every 10K patents (each costing maybe 10K$) that are
registered, I see that the system's output is really biased
($1M-$10K < 10K*$10K)
It's a disguised lottery that benefits the patent offices
and patent lawyers, and the overflow is spent by the courtrooms.

I "protect" my ideas by publication : when I write articles,
I get paid immediately (instead of spending incredible amounts of cash
for a long and painful patent application), I get recognized
as the innovator (good publicity), it spreads the ideas
(that's the original intent of patents) and I don't annoy anyone
(the reader can skip my article).

> David
yg
-- 
http://ygdes.com / http://yasep.org

"David Brown" <david@westcontrol.removethisbit.com> wrote in message 
news:4bc84f50$0$1993$8404b019@news.wineasy.se...
> On 16/04/2010 12:18, Walter Banks wrote:
>>
>>
>> Jon Kirwan wrote:
>>
>>> On Thu, 15 Apr 2010 22:22:46 -0700, I wrote:
>>>
>>>> I wasn't thinking so much about analogy to other business
>>>> areas _within_ the North American continent, but to the same
>>>> business areas outside of it.  Which is why I asked though
>>>> you had provided such examples.
>>>>
>>
>> Your questions caused be to think about the differences between
>> software patents and copyrights. To use a clearer example.
>> Remember I am not a lawyer but this is the way I understand
>> it.
>>
>> Assume that while writing a math package you discover a
>> completely new new way of doing a square root. You register
>> the copyright for the math package and you patent the method
>> you used to do the square root.
>>
>
> Don't forget that you can only register such a patent in the USA.  No 
> other country allows something like that.
>
>> You now have full control of the duplication and distribution
>> of the math package and if anyone copies it in whole or in part
>> you have various legal recourses including damages.
>>
>> The square root patent  on the other hand could be used in many
>> math packages and applications. You could then license individual
>> companies to use it and by agreement receive compensation.
>>
>> Where this gets murky is what would have happened if you only
>> copyrighted the math package. After 15 or 17 years you would
>> still have the copyright and presumably be able to enforce the
>> distribution in whole or in part. That would mean someone
>> who only wanted to use the square root part would need to
>> come to an agreement with you to be able to do so.
>>
>
> People can license all or part of code under whatever terms they want - 
> patents don't have to be involved at all.  Copyright is what gives you 
> protection and lets you enforce these licenses.

You cannot copyright a "method" only the exact textual solution is 
copyrightable,

for example: if it were possible to patent your "code" for addition then
x = a+b and x = b+a would be covered by a single patent.

but if you copyrighted it and you code was
x=a+b

then someone else can write x=b+a and would not be in breach of your 
copyright

tim

tim.... wrote:
> "David Brown" <david@westcontrol.removethisbit.com> wrote in message 
> news:4bc84f50$0$1993$8404b019@news.wineasy.se...
>> On 16/04/2010 12:18, Walter Banks wrote:
>>>
>>> Jon Kirwan wrote:
>>>
>>>> On Thu, 15 Apr 2010 22:22:46 -0700, I wrote:
>>>>
>>>>> I wasn't thinking so much about analogy to other business
>>>>> areas _within_ the North American continent, but to the same
>>>>> business areas outside of it.  Which is why I asked though
>>>>> you had provided such examples.
>>>>>
>>> Your questions caused be to think about the differences between
>>> software patents and copyrights. To use a clearer example.
>>> Remember I am not a lawyer but this is the way I understand
>>> it.
>>>
>>> Assume that while writing a math package you discover a
>>> completely new new way of doing a square root. You register
>>> the copyright for the math package and you patent the method
>>> you used to do the square root.
>>>
>> Don't forget that you can only register such a patent in the USA.  No 
>> other country allows something like that.
>>
>>> You now have full control of the duplication and distribution
>>> of the math package and if anyone copies it in whole or in part
>>> you have various legal recourses including damages.
>>>
>>> The square root patent  on the other hand could be used in many
>>> math packages and applications. You could then license individual
>>> companies to use it and by agreement receive compensation.
>>>
>>> Where this gets murky is what would have happened if you only
>>> copyrighted the math package. After 15 or 17 years you would
>>> still have the copyright and presumably be able to enforce the
>>> distribution in whole or in part. That would mean someone
>>> who only wanted to use the square root part would need to
>>> come to an agreement with you to be able to do so.
>>>
>> People can license all or part of code under whatever terms they want - 
>> patents don't have to be involved at all.  Copyright is what gives you 
>> protection and lets you enforce these licenses.
> 
> You cannot copyright a "method" only the exact textual solution is 
> copyrightable,
> 
> for example: if it were possible to patent your "code" for addition then
> x = a+b and x = b+a would be covered by a single patent.
> 
> but if you copyrighted it and you code was
> x=a+b
> 
> then someone else can write x=b+a and would not be in breach of your 
> copyright
> 

That's not quite true - copyright does not just apply to exact copies. 
Think about it a little - if you take a book you like, and copy it but 
give all the characters new names, can you publish it as your own new 
novel?  Of course not.  In fact you can make very substantial changes 
and it would still be a copyright violation - the same applies to software.

An independent and unseen re-implementation of the same idea is not a 
copyright violation, though it might have been a patent violation.

There is an enormous amount of software released in source code form to 
individuals, companies, and the public at large.  The great majority of 
it has some sort of license (i.e., it's not public domain), but no 
patent protection.  Copyright is what provides the legal strength to 
enforce the license.  It's proven strong enough to provide the 
protection people need - software patents simply are not necessary.  If 
you want an example, just look at all the software written anywhere in 
the world except the USA.

"tim...." wrote:

> "David Brown" <david@westcontrol.removethisbit.com> wrote in message
> news:4bc84f50$0$1993$8404b019@news.wineasy.se...
> > People can license all or part of code under whatever terms they want -
> > patents don't have to be involved at all.  Copyright is what gives you
> > protection and lets you enforce these licenses.
>
> You cannot copyright a "method" only the exact textual solution is
> copyrightable,
>
> for example: if it were possible to patent your "code" for addition then
> x = a+b and x = b+a would be covered by a single patent.
>
> but if you copyrighted it and you code was
> x=a+b
>
> then someone else can write x=b+a and would not be in breach of your
> copyright

This is a common misconception I think that if you intended get
around a copyright you will probably find that the copyright was
violated.

A common copyright violation in the early days of personal
computing was to recompile the PC's Boot ROM's (IBM
published the source) with the functions in a different order
and the memory tests deleted. This was found to be in
violation of the copyrights.

You can violate the copyright of a novel just by using the
same plot lines. You can violate the copyright of a
photograph by using similar composition.

There are real teeth in copyrights if they are exercised. Look at
some of the judgements in the music and movie industry. It
is not just a copy and on line distribution it extends to music and
musical arrangements.

The screen play for Avatar is on line. Completely re-writing
the dialogue into gaelic and changing the location to Greenland
using snowmobiles for transportation would probably be a
copyright violation.

Walter..

whygee wrote:

> It's as if the governments sold bazookas to the population so people
> can defend themselves : it does not stop criminality, colateral
> damages increase, it makes the weapons manufacturers happy and the
> government says "it has done something for the citizen's security".

I actually think the most common application of patents these days is as 
our field's equivalent of an anti-personnel mine --- you bury it, wait, 
and hope someone will die tripping over it, so you can pick through the 
remains.  Like mines, they're most typically used in large numbers, as 
mine-fields, in an attempt to make entire areas inhabitable.

Big companies tend use them as a deterrent against smaller ones, often 
mentioned in a statement containing a suitably spun version of "You 
pissed us off, so now we'll sue your pants off".

To those who followed the debate about software patents around here, I'm 
sure I'm not the only one to whom some of the arguments brought forth 
sounded scarily similar to cold-war rhethorics, especially all that "we 
need these things because they have them, and they say they'll bang us 
over the head with them" train of thought.  Software patents have become 
the missile-heads in yet another arms race, this time run by patent 
super-powers holding each other at bay, while making the world miserable 
for all others.

> An inventor invents, a manufacturer manufactures.

And the original idea behind patents was that an inventor should get a 
realistic chance to _become_ a manufacturer in his own right, without 
being overtaken by existing players in the market who copied his product 
as soon as they hear about them.

The original plan was to reward invention with a chance to earn a nifty 
sum of money.  A patent is a warrant of government-backed protection of 
the inventor's (or his partners') investment into setting up a 
production, by means of a time-limited monopoly.  The government 
requests payment for this privilege in the form of letting everyone 
benefit from the idea --- but only _after_ the original inventor has 
earned their fill.

> It's a disguised lottery that benefits the patent offices
> and patent lawyers, and the overflow is spent by the courtrooms.

IMHO the end of the US patent system making sense came when their 
government turned the USPTO from a tax-financed branch of the executive 
to an institution officially tasked with generating a net positive 
contribution into the federal budget.  Ever since, the USPTO has biased 
its procedures towards earning more fees above all else.  After all, why 
put work into testing, and possibly rejecting a patent application 
(little or no fees), when instead you can blindly accept it first 
(fee!), then handle the rebuttal process (more fees!) and ultimately 
leave all the actual hard work to the courts?