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Red Hat Files Amicus Brief In Bilski Patent Case 219

Posted by kdawson
from the shut-'em-down dept.
I Don't Believe in Imaginary Property writes "Red Hat has filed a friend of the court brief with the Supreme Court in regards to the In Re Bilski case, which has become incredibly important due to the possibility that it could redefine the scope of patentable subject matter in a way that affects software patents. In the brief, Red Hat argues that software should not be considered patentable subject matter because it causes economic harm due to patents being granted with vague subject matter, which makes it impossible to say that a given piece of software doesn't arguably infringe upon someone's patent. They also point out Knuth's famous quote that you can't differentiate between 'numeric' and 'non-numeric' algorithms, because numbers are no different from other kinds of precise information." Read below for the submitter's thoughts on an earlier amicus brief filed in the Bilski case by Professor Lee Hollaar.

It's a pity, though, that they don't seem to directly address Professor Lee Hollaar's brief that gave a hand-waving excuse about the Curry-Howard correspondence being merely 'cosmetic' (whatever that means), even though you can turn ZFC into a program (ZFC being the axiomatic framework in which almost all math is done) and you can turn programs into math in order to verify them. Of course, this is the guy who called the successor function 'essentially nonsense', presumably because he doesn't think that mathematicians can differentiate between assignment and equality the way computer scientists can.
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Red Hat Files Amicus Brief In Bilski Patent Case

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  • I think (Score:5, Interesting)

    by geekoid (135745) <dadinportland&yahoo,com> on Friday October 02, 2009 @11:47AM (#29617599) Homepage Journal

    I'll go buy a copy of Red Hat.

    • Maybe I should try Red Hat. I've tried using Linux in Ubuntu form and eventually gave up because I work for computers all day, when I'm at home I want computers to work for me.

      • RHEL is a very different beast to Ubuntu.

        Firstly, it is aimed at the Server market unlike the desktop (Ubuntu)
        It is aimed at stabilty and longevity.
        Therefore even in the latest version (5.4) some of the versions are somewhat behind that used in Ubuntu.

        Give it a try but be prepared to encounter some differences over Ubuntu.

      • by Xtravar (725372)

        Try Red Hat, but also try Mandriva if that doesn't work out. If you aren't fully satisfied, I'll reinstall Windows for you.

      • I want computers to work for me.

        Funny, that is one reason I use Linux. Hassle free software installs, secure with little effort, easy to install on desktops (I have had problems with laptop sound and video drivers).

        Use Mepis these days, and I have put PCLinuxOS on the shared family desktop my wife and daughter use. I have also installed Linux for other people and have recently got a request (from a kid who likes by daughter's PC) for another install (trying to figure out how to install on a PowerPC based mac laptop with a defective CD dri

    • This is the company that used every means at its disposal to try and shut down, discourage, or stall the WhiteBox and CentOS projects. It was so absurd that the CentOS people had to refer to RedHat as "prominent north american vendor" in a press release explaining they'd been hassled [centos.org].

      I understand that Red Hat was within their rights to protect their trademark, but they could have been much more pleasant about it.

  • by Icegryphon (715550) on Friday October 02, 2009 @11:48AM (#29617611)
    for(int cnt = 1; cnt do_stuffs();

    original code, do not steal!!!!
  • by Dachannien (617929) on Friday October 02, 2009 @11:56AM (#29617727)

    I agree that software shouldn't be patentable (either directly or through the various loopholes that applicants use to get around the fact that software, when claimed directly, is not a "process, machine, manufacture, or composition of matter" [uspto.gov]).

    But in my opinion, this should be a matter of policy motivated by the fact that the rate of improvements in the software arts is far too fast to permit 20-year terms of patent protection, and such a policy has to come from Congress rather than the courts. Current law seems to support the idea of granting patent rights for programs in the context of a "general purpose computer programmed with software" or a "computer readable storage medium embodying software", and I seriously doubt that SCOTUS is going to change that.

    • The problem is that patenting of software didn't come from Congress in the first place, it came from the courts.
      What I would like to see is a Supreme Court ruling that extended patents to software and business methods worded in such a way as to push Congress to pass a law addressing the issues that lead to patenting software. I don't believe that this would be a good law, but it would be one that could be more easily addressed than the current situation.
      • Re: (Score:3, Interesting)

        by cetialphav (246516)

        The problem is that patenting of software didn't come from Congress in the first place, it came from the courts.

        That isn't completely true. The courts use the law as guidance in determining the scope of patent protection. There is nothing in the laws passed by Congress excluding software patents. In fact, the laws are intentionally vague so as not to accidentally exclude technological innovation from patent protection. So while software patent protections are directly derived from court rulings, those rulings are derived from an interpretation of the laws passed by Congress.

        The argument against software patents i

    • by erroneus (253617)

      Current law seems to support the idea of granting patent rights for programs in the context of "general purpose computer programmed with software" or a "computer readable storage medium embodying software"? Really? What law is that?

      • Re: (Score:3, Informative)

        by Dachannien (617929)

        It's right there in 35 USC 101. In fact, I quoted the relevant part in my previous post.

        A general purpose computer programmed with software is a machine, and 35 USC 101 says that machines are patent-eligible. A computer-readable storage medium embodying software which, when executed, performs the steps of some method is an article of manufacture, and 35 USC 101 says that articles of manufacture are patent-eligible.

    • Another reason patents suck is that, like locks, they only keep out honest people.

      Certain powerful countries will use foreign technology without paying the fees the rest of the world has to. America and the rest of the free world needs to get real. The P in GNP is product, not paper.

      I'm sick and tired of watching my country burden itself with regulations while allowing its "free trade partners" to play by their own rules. We can't tell them what to do but we can choose not to deal with them.

    • by Grond (15515)

      I agree that software shouldn't be patentable (either directly or through the various loopholes that applicants use to get around the fact that software, when claimed directly, is not a "process, machine, manufacture, or composition of matter").

      How is a software algorithm ("a process or set of rules to be followed in calculations or other problem-solving operations") not a "process?" How is a computer which has been programmed in a particular way not a "machine?"

      But in my opinion, this should be a matter o

      • How is a software algorithm ("a process or set of rules to be followed in calculations or other problem-solving operations") not a "process?" How is a computer which has been programmed in a particular way not a "machine?"

        Software itself is not a process. The steps performed by a processor when executing the software do constitute a process. The algorithm underlying the software may be a process, but algorithms in the absence of practical application are considered "abstract ideas" which is one of the classes of judicial exceptions to patent eligibility - this is really what Bilski is all about. And a computer which has been programmed in a particular way is a machine, but the software with which it is programmed is not a

        • by Grond (15515)

          "And by what measure do you claim that the software arts continue to improve significantly faster than other areas of technology?"

          By the sheer vast numbers of patent applications filed for inventions in the software arts.

          That doesn't actually tell one much. Which is the faster moving area of technology: one with 1000 tiny incremental improvements per year or with 1 giant, paradigm-shifting leap per year? Or look at it this way, which moves faster: an area with 1000 improvements to technology used by one p

          • by 0xdeadbeef (28836)

            That's a very hypothetical argument. For it to be persuasive, this must not only come to pass but happen with sufficient regularity to outweigh the benefits of the patent system.

            And yet no one credible has demonstrated the benefits of the patent system with regard to software patents. You are dealing in hypotheticals. You are claiming God exists and demanding the rest of us believe you unless we can prove he doesn't.

            Even those with the most to gain from it, i.e., large corporations, are demanding reform, an

      • by 0xdeadbeef (28836)

        Furthermore, I would suggest that the faster an area of technology moves, the less it matters how long the patent term is. A patent in such an area will quickly become obsolete. It's actually stagnant technology where a long patent term on a rare innovation is most valuable.

        A patent is a wall in front of progress. The faster the progress, the more the wall arrests. The whole point of patents is to encourage people to invent things so valuable that others would rather pay to be let through that wall than hav

    • by geekoid (135745)

      That's a poor argument becasuse if that's true, that just means a particular 'device' would just become obsolete.

      It shouldn't be patentable becasue it's math, and because it's a language.

      You can't patent 2 + 2, and you can't patent a language.

      • by Grond (15515)

        It shouldn't be patentable because it's math

        An algorithm alone may be math, but the use of an algorithm to solve a problem is not math. For example, consider a sorting algorithm. I can think about it, describe it, analyze its running time and space usage, I can prove it correct. That's all math, but none of it will actually sort numbers, much less solve a problem that relies on sorting numbers. Once an algorithm is applied to the solution of a problem, it ceases being math and becomes engineering.

        Engine

  • Laws have been struck down on the grounds that they were too vague to enforce.

  • Full source code (Score:3, Interesting)

    by TiggertheMad (556308) on Friday October 02, 2009 @12:16PM (#29617971) Homepage Journal
    The basic concept of patents is you share your discovery/insight with society at large, and in return you recieve a short term monopoly. Society is advanced by your knowledge, you are rewarded. Good for both parties.

    I would not object to software patents if they actually provided the complete functional source code in the patent. You want a patent, you provide full disclosure.
    • by l2718 (514756) on Friday October 02, 2009 @12:29PM (#29618133)

      Patents last for 17 years; product cycles in software are about 3. In other words, software ideas (even with complete source code) are usually worth zero after 17 years. In fact, almost all software ideas have the following characteristics:

      1. They are directly useful to the inventor, in the software he writes.
      2. The idea improves a small component in a large system. No product will turn specifically on the feature improved by this idea.
      3. The product containing the new idea also contains many more ideas, most of them due to people other than the inventor.

      Taken together, these mean that there is no need for software patents at all: people would invent software ideas all the time, even without patent protection (they did so for decades in the past), and they would benefit from them monetarily. Moreover, disclosing your software idea "for free" doesn't lose you much (this idea is not what makes your product unique) and gains you a lot -- it gains you all the ideas that everybody else discloses. The incentive to keep software ideas secret is so low that there is simply no need for patents to force disclosure.

    • by geekoid (135745)

      Except one company could shut down the software industry.

      My patented application uses a standard method to communicate to the database, now everyone either uses a different way or pays me.

      That would cause fragmentation and would stifle development.

    • I would not object to software patents if they actually provided the complete functional source code in the patent. You want a patent, you provide full disclosure.

      Only if I could implement the same mechanism using a different source code without infringing your patent. Otherwise a source code listing does no add any value to the society.

  • Knuth's argument [progfree.org] misses the point. The distinction is not between mathematical and non-mathematical algorithms, but rather between an algorithm in the abstract and an algorithm as applied to a real world problem. An algorithm, in and of itself, lacks the utility required for patentability. Once applied to solve a problem, however, the invention is no longer the algorithm per se but rather its useful application, which should be patentable.

    Suppose one invents an algorithm for efficiently solving systems o

    • Re: (Score:3, Insightful)

      by Rob Riggs (6418)

      The distinction is not between mathematical and non-mathematical algorithms, but rather between an algorithm in the abstract and an algorithm as applied to a real world problem. An algorithm, in and of itself, lacks the utility required for patentability. Once applied to solve a problem, however, the invention is no longer the algorithm per se but rather its useful application, which should be patentable.

      So you are saying that the "Use of a sort algorithm in the display of user selectable menu items" should be patentable, but sorting algorithms themselves should not be?

      The problem with that is that a new sorting algorithm would be novel. The application of that algorithm: not so much. Because you'll end up with "Use of bubble sort algorithm in the display of user selectable menu items", "Use of quick sort algorithm in the display of user selectable menu items", "Use of merge sort algorithm in the display

      • by Grond (15515)

        The problem with that is that a new sorting algorithm would be novel. The application of that algorithm: not so much. Because you'll end up with "Use of bubble sort algorithm in the display of user selectable menu items", "Use of quick sort algorithm in the display of user selectable menu items", "Use of merge sort algorithm in the display of user selectable menu items".

        Novelty is not the only bar to patentability. Non-obviousness is also a requirement. So the mere substitution of a new algorithm that acc

    • by Chris Burke (6130) on Friday October 02, 2009 @02:26PM (#29619677) Homepage

      Ah I see. So the Pythagorean Theorem shouldn't be patentable, but using the Pythagorean Theorem to figure out how long to make the hypotenuse of a triangle with given sides you're constructing or how long the hypotenuse of an extant triangle with known side lengths is, should be.

  • by Jodka (520060) on Friday October 02, 2009 @12:27PM (#29618109)

    Intuitively we think of patents as applying to designs which man creates, but not to designs which man discovers. That system grants engineers compensation for their work of designing and provides them an incentive to design. So you can patent a telephone but not a fish. That "discovered or created" dichotomy works until you get to math because we do not know if math is discovered or created. Is mathematics a natural phenomenon which exists and is discovered by man or is it a thing which man creates? To summarize the summary, if it is the former, and programs are math, then programs should be un-patentable.

    Though a philosophically entertaining line of analysis, perhaps a better approach to evaluating software patents would be purely to consider their social utility: How much good software is created at what price with or without software patents; Does the sum social burden of patent trolls, the cost of litigation, and restrictions on using proprietary algorithms outweigh the value of additional software created a result of the patent incentive?

    • Re: (Score:3, Informative)

      by Kirin Fenrir (1001780)
      But you can patent genes. Discovered, not created.

      Is it bullshit? Yes, but it has legal precedent.
      • Re: (Score:3, Insightful)

        by Jodka (520060)

        But you can patent genes. Discovered, not created.
        Is it bullshit? Yes, but it has legal precedent.

        Well what many people find to be so vile about gene patents is precisely what you say, that genes are discovered not created, that they violate the "discovered not created" rule. So I would say that still, there is a "discovered not created" rule for patent eligibility and gene patents are a notorious exception to that rule, rather than saying that the existence of gene patents proves that there is no such rule.

    • Math is clearly a human creation - it is the use of symbols to describe the natural world.
      Math did not exist before humans.

      • by blueg3 (192743)

        it is the use of symbols to describe the natural world

        You're thinking of physics. Math is the use of symbols to describe other symbols.

  • All patents are math (Score:3, Interesting)

    by j. andrew rogers (774820) on Friday October 02, 2009 @12:31PM (#29618173)

    Any argument loose enough to classify algorithms as mathematics is necessarily loose enough to classify *all* patentable subject matter as "mathematics". I'll see your Howard-Curry isomorphism and raise you algorithmic information theory.

    The Howard-Curry argument is essentially that anything that can be described on a computer is "math". Unfortunately, there is no patentable subject matter that does not have this property.

    Even ignoring that, the part that is disingenuous about the Howard-Curry argument is that it also is directly applicable to electronic circuit design and chemical process patents in the same way it is applicable to a computer algorithms. I would find the argument less shady if it was not applied selectively by opponents of algorithm patents.

    • Any argument loose enough to classify algorithms as mathematics is necessarily loose enough to classify *all* patentable subject matter as "mathematics".

      What about all physical devices? Tell me your isomorphism to bring them to math. Note: it's not the description which is patented, but the described object.

    • by Chris Burke (6130) on Friday October 02, 2009 @04:01PM (#29620651) Homepage

      Any argument loose enough to classify algorithms as mathematics

      LOL. Algorithms are a subset of mathematics, no "argument" is necessary.

      And the difference between software and all other patentable subject matter is that while other subject matter can be described by math, software literally describes math. That's what software is: Just another symbolic language for describing math, that happens to be conducive to being read by a machine.

      Software is math in exactly the same way that "a^2 = b^2 + c^2".

      A stone flying through the air can be described by the math for a parabola. Language that symbolically represents that mathematical relationship is math, whether it's machine-readable or not.

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