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Comments: 392 +- Your Rights Online: Recipient of First Software Patent Defends Them on Tuesday December 01, @05:25AM
Posted
by
kdawson
on Tuesday December 01, @05:25AM
from the semper-fi dept.
from the semper-fi dept.
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Arguendo writes "Martin Goetz, who obtained the first software patent in 1968, has penned a thoughtful defense of software patents for Patently-O. Goetz argues that there is no principled difference between software and hardware patents and that truly patentable software innovations require just as much ingenuity and advancement as any other kind of patentable subject matter. The Supreme Court is of course currently considering whether to change the scope of patentable subject matter in the Bilski case, which we've discussed before." Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?
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Patents aren't the problem (Score:5, Insightful)
Patents by themselves weren't a problem back in 1968 and shouldn't be problems now either. The issue is how they are used as legal clubs to beat down competition with or simply as a way to make money through litigation alone.
Re:Patents aren't the problem (Score:5, Insightful)
Software is already protected by copyright, and should not be protected by patents. If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people.
Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.
Parent
Re:Patents aren't the problem (Score:5, Informative)
Indeed. I though TFA was very weak. His points were:
Only the first point is anything resembling an argument, and that one we've heard a dozen times before.
If anyone wants a soild exploration of what should and should not be considered software, and why it ought not to be patentable, I'd recommend PoIR's An Explanation of Computation Theory for Lawyers" [groklaw.net] over on Groklaw. It's well-researched, well-argued, and informative.
Parent
Re: (Score:3, Informative)
Since we're exchanging links - if anyone wants to go really nuts over the matter of what knowledge can be owned and how, there's this philosophy thesis:
http://www.archive.org/details/OwnershipOfKnowledgeIsThereANaturalRightTointellectualProperty [archive.org]
Full disclosure: it's mine.
Re:Patents aren't the problem (Score:4, Funny)
Parent
Re: (Score:3, Funny)
Re:Patents aren't the problem (Score:4, Insightful)
The problem isn't software patents, hell every now and then I see a really fantastic piece of code and think "I'd have never thought of that in a million years". Sometimes we see the software equivalent of the ball-bearing, simple, elegant but not obvious until someone comes up with it.
The problem is the hulk of intentionally obfuscated legalese in software patents which is utterly useless to an engineer trying to duplicate what's being patented.
The problem is not including the actual source code in the patent.
The problem is patenting a general idea rather than an exact way of doing it.
The problem is flow charts with descriptions of what some section of what you're patenting does because while you can engineer around an innovative break design in a car you can never engineer your way around a box in a flow chart reading "slows car down".
The problem is the bastardised combination of patents and copyright software enjoys.
Pick one or the other damnit.
Parent
Re: (Score:3, Interesting)
Discovery, novelty, etc. (Score:3, Insightful)
Re: (Score:3)
Well, I think the main point he's making is that software programs are demonstrably equivalent to Turing machine, lambda calculus expressions and effective methods. Effective methods have never been patentable (I'm not sure if business method patents qualify however) and lambda calculus expressions are unquestionably
Re:Patents aren't the problem (Score:4, Informative)
PoIR's main point is provably false in this case.
PoIR says:
A simple google search revealed that the attorney arguing this case before the Supreme Court has a BS in Electrical Engineering from Duke, and a MS in Computer Science from Johns Hopkins.
http://www.finnegan.com/MichaelJakes/ [finnegan.com]
And he is arguing in favor of patent-eligibility for Bilski's method (which isn't even tied to software, remember).
True, the people *deciding* the case is a different story. The Supreme Court's decisions do indeed reflect a lack of understanding. In Benson they obviously didn't understand what a re-entrant shift register is.
But the problem here is not as simple as "lawyers don't understand computers." (no matter how much the geek community would like to pretend that it is). Its just not that simple. I've spent a lot of time thinking about this issue and there is just no easy answer.
FYI - I'm a patent attorney with a BS in computer engineering and my main practice is computer and software patent prosecution. I've programmed in Java, C, Assembly, etc. I've designed a simple pipelined (5-stage) CPU. I know what software is.
PoIR also claims that "All software is discovered and not invented" and that this is true "without a shred of doubt."
This unsupported claim begs the question - where is the line between discovery and invention. To posit that software is by definition NOT invented, and to conclude that software is not inventive, is obviously circular reasoning.
PoIR then goes on to ramble about Godel's numbers, and Turing Machines. While neat, these really have nothing to do with the issue.
Parent
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Re: (Score:3, Informative)
I'm sorry, PoIR fails.
Take this statement:
Re: (Score:3, Insightful)
I don't think he misunderstood the court. I think he's saying that the court missed the fundamental point about computers. A judgement like that is a bit like saying that a printing press becomes a new machine whenever you load a new configuration of type into it, and therefore that books should be patentable.
I disagree, Still, if you really think so, I encourage you to comment as part of the Groklaw discussion. I'm sure PoIR is far m
Re: (Score:3, Insightful)
by programming a general purpose computer to perform a specific task, the programmer has created a new special purpose computer... The programmer has created a functionally (not physically) NEW MACHINE. It has new abilities.
Pardon the pun, but that is patently absurd.
Grab any handy common calculator. Press 2 multiply multiply 0 equals. You have now programmed that basic calculator, and by your own patently absurd statement it is a - and I quote - a "NEW MACHINE".
With those four key presses you have programm
Re: (Score:3, Informative)
I don't think its absurd at all. I think the "programmed" calculator from your example SHOULD be patent- eligible .
What you're forgetting is: THAT DOESN'T EQUAL A PATENT.
Once the hardware you're discussing (say a casio calculator) is known, it is probably pretty obvious to use it to multiply by two. Therefore, the patent would be barred by 35 USC 103 (AND NOT 101). In fact, the instruction manual would probably explain how to use it to multiple by two, in which case it would flat-out anticipated under 35
Re:Patents aren't the problem (Score:4, Insightful)
Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.
An invention that can easily be examined and cloned doesn't need patent protection.
The term "patent" comes from the use of the word that means "apparent to everyone", as in "patently obvious". Patents further the useful arts not by enticing people to invent new things (when there's a problem that needs solving, people will solve it anyway), but by enticing inventors to share their knowledge: before patents, inventors were reluctant to share details of their inventions because they feared competition, so patents grant a temporary monopoly in exchange for disclosing those details.
This rationale for patents rarely applies to software. A program has to be executable, and if a CPU can figure out how to make it work, so can a person. Even intentionally obfuscated software can be understood with moderate effort (see any warez site).
Parent
Re:Patents aren't the problem (Score:5, Insightful)
The way I see it, patents on software are wrong for two reasons.
Firstly: The software is already protected by copyright, so there should not be "double" protection by also allowing patents.
Secondly: Patents are supposed to be a "social contract", where the inventor publishes the details of how his invention works and thus improves the "state of the art", in exchange for a reasonable period of protection that allows the inventor sufficient time to get the product to market, recoup the cost of inventing it and making a profit. Society as a whole benefits because other inventors can then use the details to incorporate the ideas and mechanisms described in other inventions (possibly subject to obtaining a license).
This works great for many inventions - but fails completely for software.
The reason it fails for software is that most software patents are so obfuscated as to be practically useless to a programmer to build upon.
How often do you actually see the source code for a software patent? I never have in ant of the software patents I have seen.
Imagine if patents were allowed on artworks - should the first guy who paints a picture of a bridge then be able to prevent anyone else from painting a picture of a bridge? Of course there are many "prior art" examples of paintings of bridges, so it would not be allowed. What if it were something a little different? Eg. someone drawing a stick figure picture of a guy in a red shirt doing a handstand on a bridge? or the more generalised case of just a humanoid figure doing a handstand on a bridge? This is the sort of wording that many software patents have - even if following artists are able to paint much better pictures of people doing handstands on bridges.
Worse yet, if you painted a picture of something entirely different, which just happened to have a picture of a guy doing a handstand on a bridge being one small element of the entire picture ( say, it's in the background or something) you would still be in violation of the patent - even though the handstand guy is just a tiny part of the whole.
now programming is to a certain extent like art - there are many ways of implementing the same "idea", in many different languages, and in ways that are better than the originally scrappy code that might have been written. Whats more, there are so many elements that go into a program, it is all but impossible to search through all the possible patents it might potentially infringe. Software patents are not making it easier for programmers to write better programs, so therefore are entirely useless for "improving the art", and thus the social contract of exchange of information in return for a limited period of protection is broken.
Parent
Re:Patents aren't the problem (Score:4, Informative)
Read what he wrote. He claims that patents aren't intended for the benefit of the inventors, but for the benefit of society. They offer inventors a limited monopoly in exchange for sharing their inventions, rather than keeping them secret.
For inventions that are easily reverse-engineered or duplicated in a slightly different fashion (like software), society doesn't need to entice inventors to share their inventions, because that sharing happens automatically. Only for inventions that can be kept secret is it necessary to offer a monopoly in exchange for sharing the invention.
Parent
Re:Patents aren't the problem (Score:4, Insightful)
You can patent a new type of hammer.
If you draw a diagram of the hammer, that diagram is covered by copyright.
You can use that diagram in a patent application, in which case the diagram cannot be covered under copyright.
If you draw another diagram of the same type of hammer, that new diagram is covered by copyright.
The hammer itself, that is, the physical thing that is a hammer, can neither be patented or copyrighted.
The same logic should apply to software:
- You can patent a new type of software algorithm.
- If you write source code implementing that algorithm, that source code is covered by copyright
- You can use that source code in a patent application, in which case the source code cannot be covered under copyright.
- If you write a new implementation of the same algorithm, that new source code is covered by copyright.
- The executable itself, that is, the black-box which tells you at most as little of the implementation details as a hammer would compared to a diagram of the hammer, can neither be patented or copyrighted.
Parent
Re: (Score:3, Interesting)
The hammer itself, that is, the physical thing that is a hammer, can neither be patented or copyrighted.
I think if we lived in a world where we had high precision multi-material 3D printers or Star Trek type replicators, we probably would have laws that copy protect physical objects. We have copy protection for information because it is so easy to copy, yet it is acknowledged by us humans to be valuable and most of us recognise that the creator should get first dibs on his idea.
Why should an executable not be eligible for copyright, while a source file or digital image should be copyrightable? And what happen
Re:Patents aren't the problem (Score:5, Informative)
If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people.
Wow, how did that get marked up. I'm really starting to wonder about the moderation system.
There are so many examples in real life that contradict that.
Lets start off with the bios chip in computers. That was copyrighted.
They got around it simply by having 2 teams
Team A disected the chip, and wrote the specs of what it did, and how it operated.
Team B took the specs and had nothing else to do with team A, and using only those specs made a new bios chip that matched the specifications written.
The courts decided that copywright didn't come into play, because they didn't copy the chip. (They indeed made their own version)
If it was patented it would of been a different matter.
Theres also the matter of the magic key that allowed decoding of HD-DVDs. I don't believe copyright is able to do anything about that (Although the DMCA might say otherwise, i'm unsure since its DRM and DMCA changes the game with DRM)
You could also try talking to apple, about how their court case vs microsoft went when MS copied how apple looked.
http://en.wikipedia.org/wiki/Apple_Computer,_Inc._v._Microsoft_Corporation [wikipedia.org]
I could go on, but in short you can't copywright the look and feel of software either.
So if the detailed innerworkings (or algorithms) aren't protected by copywright, and if the look and feel isn't protected either. What does copywright stop.
It stops outright ripoffs and direct copies, but it doesn't stop other companies producing compeating products.
Patents however do stop compeating products. (A little too effectivly some would argue)
If the bios chip was patented, it would of been illegal.
If it wasn't for the fact that the GUI had already been proven and demostrated by xerox before being handed over to apple. Apple could of patented the "look and feel".
So back to the orginal point.
Copywright Law protects you against people copying your software. It isn't very effective against people that DEVELOP compeating products. Patents are.
You can hate or love what patents are, but don't be confused about the differance. To discard what patents because [software] copywrite exists, defeats the purpose of patents themselves.
Reform is needed for both, but not an abolishment.
Parent
Re: (Score:3, Interesting)
Up until about 25 years ago it was quite hotly debated if sooftware (especially compiled object code) was actually covered by copyright law or not.
Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.
Re:Patents aren't the problem (Score:4, Informative)
There's nothing wrong with the patent system other than a few greedy idiots abusing it by publishing obvious patents, and you /.ers want it abolished for some naive socialist agenda where the inventors simply hand over their hard work for free to companies and general public.
No one here is asking inventors to work for free, so you can lose that strawman.
By the way, you realize patents are government-enforced monopolies, right? Walling off sections of the free market through legal force? If you think opposing patents is "socialist", you don't know what the word means.
Parent
Woosh (Score:3, Insightful)
Something very big just flew over your head.
.
There is no inherent right for anyone to restrict others copying / doing with whatever they see and obtain. Patents are a trade-off, a contract in society, but no right.
The only reason we have patent laws, was because people thought it would promote science. Now we see it is only to promote big business to hinder fair competition, or for small companies to hurt the big players through litigation. Nothing useful is produced in a patent, as the knowledge in a paten
Re: (Score:3, Insightful)
No patents mean anyone can copy the invention without paying the inventor, so I win that argument.
That doesn't mean he's not getting paid at all, though. If his invention is any good, he's already making money from it by the time his competitors find out about it.
That monopoly has been earned
No, it has been granted .
It's earned based on the fact the inventor has full rights to profit from the invention and others don't, at least not without permission.
Which is only the case because the government says it is.
It doesn't have to be a monopoly, though. If anyone pays licensing fees to the company owning the invention, it can use the invention.
That's exactly what the monopoly is.
Lol, the walling off is to protect the weak (inventors) from abuse (copycat jackals, greedy companies and consumers).
So how''s that been working out for you lately?
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I thought one of the points of patent law was to create a library of knowledge. The idea is that if an inventor has to keep the invention secret or obscured in order to make money on it, the knowledge could be lost. Patents give temporary protection to the inventor (or their supreme corporate overlord).
If mathematics were patentable, then eventually the knowledge is available to all and the mathematician (or their supreme corporate overlord) gets rights for some certain period of time.
This doesn't seem to
Re: (Score:3, Insightful)
Yes it's a good thing that mathematics was routinely patented over the last thousand years, otherwise we'd never had made any progress, and mathematical discoveries would never have been shared with the public.
(And even if you say it's only 20 years, how would quantum mechanics have advanced last century, if every discovery by one physicist resulted in a 20 year delay before others could make use of it? Or imagine Newton and Leibniz getting bogged down in a patent court battle for the rest of their lives ov
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I thought one of the points of patent law was to create a library of knowledge. The idea is that if an inventor has to keep the invention secret or obscured in order to make money on it, the knowledge could be lost. Patents give temporary protection to the inventor (or their supreme corporate overlord).
If mathematics were patentable, then eventually the knowledge is available to all and the mathematician (or their supreme corporate overlord) gets rights for some certain period of time.
This doesn't seem to be that much of a problem, or does it?
If the point of patent law is to create a library of knowledge, then for software patents it is an epic fail. A proper library of knowledge might be gleaned from the ACM journals or from other publications that deal with software development theories, but the USPTO is not, nor has it ever been a depository of knowledge of computational sciences.
More specifically, a software developer can create in one day dozens of different algorithms and even have them implemented.
More to the point, the largest problem t
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Re: (Score:3, Insightful)
Many algorithms can be explained and profiled using mathematics, but they aren't a subset of mathematics. Take quicksort for example. Sorting data has nothing to do with mathematics. It just so happens that a mathematical model can predict the performance of the algorithm.
Mathematicians work on axioms and the like. There is no axioms for a lot of things in software. Saying software patents should be outlawed because it's based on logic is like saying that mechanical patents should be outlawed because it's
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I'm not denying there are many idiotic patents out there, but there are also many valuable, useful and innovative patents that deserve protection.
Software patents are a great idea, but the execution is so completely flawed that I'm convinced we'd be better off without them. The cure is worse than the ill.
Let's take a very normal hypothetical. You produce a piece of software with a genuinely innovative non-obvious algorithm in it, absolutely patentable by the rules, and you get a patent on it. IBM shamelessly steals the idea and puts it in their software. Can you sue? The thing is, you've undoubtedly violated at least one (and probably more) IBM
Re: (Score:3, Interesting)
The problem I see with this is to define who, exactly, is getting plundered here and who is getting exploited.
For myself and based upon my lifetime of experience, I have known many individuals who have filed patents and sought patent protection on a great many things. Heck, I've even worked for companies who have filed patents on work that was done while I was an employee (nothing personal, but some co-workers).
In not one case, not even these companies I worked for, was patent protection anything other tha
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There are also many valuable, useful and innovative ideas that deserve compensation.
Patents are a terrible way to compensate inventors. "Protection" in this context is merely another word for "monopoly". I wish to compensate inventors in some other way that does not involve a monopoly grant, with all the problems that has caused. There's a big difference between not wanting to compensate inventors at all, and not wanting to compensate inventors with patent protections.
You say "socialist" as if that w
Re: (Score:3, Insightful)
Why was the parent comment marked down as troll when it is absolutely right? Copyright isn't the same as a patent. What he goes on to say is debatable, but it certainly isn't far from reality.
Black and white boxes (Score:3, Interesting)
Re: (Score:3, Informative)
the fact that they can't be proactively challenged
This is not correct. Any person can file a reexamination request and present a substantial new question of patentability with the USPTO. Here is a wiki link http://en.wikipedia.org/wiki/Reexamination [wikipedia.org]. So if anyone has some publication that should invalidate a patent, by all means attack it. Also, there a declaratory judgment actions that can be used to initiate a lawsuit before the patent holder sues you. However, the patent holder needs to take some action that makes the likelihood of a future lawsuit
Re:Patents aren't the problem (Score:5, Insightful)
I'm going to have to disagree with this.
Software patents were a problem then and are still a problem now. Patents have always been a trade off. At one time everyone making inventions hid their work through secrecy and obfuscation. This is clearly their right and in order to protect the upfront investment in research and development it was necessary. Otherwise someone could use the information that other people had developed in order to create a product without the upfront investment. They could then undercut the initial inventor.
The result of secrecy and obfuscation was that society couldn't build on top of new ideas. Progress could stall because only a few people knew how something worked. So a limited monopoly was granted to inventors in exchange for full explanations of their inventions. It was hoped that this monopoly would allow others to build on previous inventions and accelerate progress.
This is fine when we are talking about real physical machines. We aren't giving monopolies on ideas, rather their expression in physical form. In the world of physics, only certain things work for a given problem. For example with velcro the hooks have to be at a certain angle and the loops have to be at a certain density. Nobody can patent the idea of a hook or a loop. But a specific physical arrangement of hooks and loops with a specific application is patentable.
The problem with software is that it isn't constrained by physics. For any given problem there are many expressions that can work. Software *isn't real*. If my hooks and loops don't match up I can change the laws of physics to make them match. The work in developing software is *not* trying to discover the angle with which a hook must be made, but rather the sheer volume of describing the hook.
Because people misunderstand the purpose of a patent, they believe that patents exist to protect the upfront investment of development. In this case, if it takes a year worth of work to type in the description of my hook, that hook must be worthy of protection. It is, after all, a considerable upfront cost in my act of invention. But the *specific description* of the hook (i.e., the source code) is not what they want to patent. After all, they already obfuscate it and have a copyright for it. It is amply protected. What they want to patent is the idea of a hook for a given application. *All* descriptions of hooks for that application are now forbidden.
Now we could argue that some techniques are difficult to develop. This is true. But on a computer, all techniques are mathematical algorithms. These are not, and never were patentable. If we accept the argument that a computer program is a "software machine", then the patentable part must be the description of the algorithm in the computer. But this is already obfuscated, secret and protected by copyright. They wish a higher level protection on the concept itself. This is a problem because it has never been patentable (if you wish a reason, I direct you to read the original arguments given when instating the patent system).
Not only are software patents a problem, their very nature is what is causing "bad patents" and "money through litigation" schemes. Any software patent must, by necessity, by overly broad and provide an opportunity for abuse. Not only should software patents be disallowed, but also "hardware" patents that can be fully implemented in software. To do otherwise is to fly fully in the face of the original intent of patents.
Parent
Re:Patents aren't the problem (Score:5, Insightful)
***Patents by themselves weren't a problem back in 1968***
A common belief. But probably wrong. Patents are, and always have been, a dubious idea. I don't have time to write a real essay. But just one example. In the early 20th Century, many of the basic patents on aircraft technology were held, naturally enough, by the Wright brothers. However, a lot of the early aircraft were built by Glenn Curtiss who was unable to get a licensing agreement from the Wrights. Curtiss built his planes anyway using (and patenting) alternate technology where he could. The ensuing lawsuits dragged on and on, draining the resources of both parties and crippling the development of aircraft in the US because no one was interested in building aircraft until they knew who they had to pay for the privilege.
http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war [wikipedia.org]
By the time World War I started, the US was years behind the Europeans in aircraft design. Congress eventually solved the problem by enacting compulsory licensing at a fixed royalty.
How, exactly, did this mess -- which was far from unique -- benefit anyone?
Of course, things are far worse today. The average patent is (deliberately as far as I can see) unintelligible, the claims absurd, prior art is ignored, stuff that is obvious to practicioners is patented, natural laws are patented, etc, etc, etc.
IMHO, the patent system is broken. Badly broken. We would be well advised to carefully -- very carefully -- scrap the thing. Software patents would be a terrific place to start.
Parent
Re: (Score:3, Insightful)
Without patents, it would be even easier for medium/large/mega cooperation to prey on small companies inventions, I write even because just having a patent today do not mean that your immune against this behavior.
Re:Patents aren't the problem (Score:5, Insightful)
Without patents, it would be even easier for medium/large/mega cooperation to prey on small companies inventions, I write even because just having a patent today do not mean that your immune against this behavior.
That's the oft-quoted theory. In practice, little guys almost never win in patent disputes. Instead, they're bankrupted by legal bills and never see a dime of the royalties they should get. In theory, patents should help the little guy. In practice, they favor large corporations.
Parent
truly patentable software innovations... (Score:5, Insightful)
I'd like to know (Score:3, Insightful)
I agree with him - there's no difference (Score:5, Funny)
Re: (Score:3, Interesting)
There is no problem with software patents per se.
There are always problems with patents per se, as they sub-optimize the free market. Some industry areas are just exposed to more damage; the shorter the development cycle and the more highly multi-functional/combinatory the segment is, the more problems you'll get as inventions that happen to incorporate something patented, or would combine some patented things become basically impossible to make, potentially slowing down development in some areas by decades
The priniple difference... (Score:3, Interesting)
The big principle difference is that in the physical world we can discover new things and invent better ways to do existing things. I am yet to see a single software patent that I feel is really a new invention that requires protection. If someone can link me a software patent that they feel was a new invention and that others might benefit from then by all means, I am happy to be proved wrong...
Het gets it right and wrong at the same time (Score:3, Interesting)
The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility.
That's absolutely correct. And the reason that people choose software when they can get away with it, is because it generally much cheaper, faster to implement and more flexible. Which in turn results in completely economic effects of patent claims that include software implementations compared to claims that only cover hardware implementations.
The whole argument about software companies also performing state-of-the-art R&D should be irrelevant from a patents-point-of-view. Patents are not a natural right (they're not awarded because someone deserves them for whatever reason), but they are purely economic tools. And blunt and wide-reaching ones at that. Applying blunt and wide-reaching tools without discrimination just because some things are alike in terms of intellectual achievement does not necessarily have the same economic effects. Again: patents are not rewards, they're tools, to be applied with care where it makes macro-economic sense, not to protect certain business models at the cost of a huge overhead for an entire sector of industry.
And according to various economic studies [ffii.org] (also includes citations from some political documents, feel free to ignore those), patents indeed don't have overall positive effects on in the software field. In fact, the 2003 report on innovation from the FTC [ftc.gov] came to the conclusion that patents are not very important to innovation in the semiconductor industry either (although slightly more so than in case of software, and their downsides are slightly less detrimental in that case). So the whole comparison with hardware and software does not necessarily lead to the conclusion that the author of the article envisions...
All software is math. (Score:3, Interesting)
All software is math, no exceptions.
You can't patent math.
Well, in the current state of things, you /can/ patent math, and that's something a lot of people are hoping is revoked.
Imagine if something like calculus had been patented, or the quadratic equation?
We'd be fucked, as a species.
For a concise, well written and much elaborated explanation, see "An Explanation of Computation Theory for Lawyers": http://www.groklaw.net/article.php?story=20091111151305785 [groklaw.net]
Now, that's written specifically for lawyers, but it should be clear enough, perhaps more clear because of that, for most of the Slashdot crowd to get it - all software is math, no exceptions, and math should not be patentable.
Development Cycle (Score:3, Insightful)
In a word, no. It doesn't matter how or in what context you come up with something, it's whether it's sufficiently unique or not. And in any case, I am not sure why you refer to "current development practice" since that varies wildly from application to application, and the "waterfall" process is certainly still in full force for many serious programming applications.
Brett
he's actually right (Score:3, Interesting)
No, really. And I say that as an outspoken opponent of software patent.
His most important sentence is It is obvious that software products are not "software ideas". - and that's what's wrong with the patent system. A hundred years ago, you had to submit a working model to get a patent. These days, you can patent software ideas and business processes.
When we speak about "software patents" we are really talking about monopoly rights on algorithms. And that's as stupid an idea as a copyright on a number.
What the author apparently means when he talks about "software patents" is a complete product, a working implementation of a concept that can be demonstrated to do what the list of claims contains. That's a bit of a different animal than about 99.999% of the software patents issued during the past 10 years.
And I agree that a bit of protection on that would be nice for those who invented it. We can discuss whether or not patents is the right tool, or copyright, or some new form, but that's not important.