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Open Source Initiative, Free Software Foundation Unite Against Software Patents 105

Posted by Soulskill
from the like-batman-and-superman-fighting-illiteracy dept.
WebMink writes "In rare joint move, the OSI and FSF have joined with Eben Moglen's Software Freedom Law Center to file a U.S. Supreme Court briefing in the CLS vs Alice case. The brief asserts the basic arguments that processes are not patentable if they are implemented solely through computer software, and that the best test for whether a software-implemented invention is solely implemented through software is whether special apparatus or the transformation of matter have been presented as part of the claims (the 'machine or transformation' test). They assert that finding software-only inventions unpatentable will not imperil the pace of software innovation, citing the overwhelming success of open source in the software industry as proof."
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Open Source Initiative, Free Software Foundation Unite Against Software Patents

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  • I respect Stallman's accomplishments, and I can see the logic of his arguments, but I sometimes feel that he's too divisive within the F/LOSS community. Infighting - which is easy for outside forces to exploit - could weaken all sides of the movement. This lawsuit is a key example of a situation where by combining forces, they can achieve more than either those who take a pragmatic or a principled stand (what I see as the key differences between the OSI and FSF) could achieve alone. I hope to see more such efforts (and of course, I hope they prevail in this suit).

    • Please do be specific about how Stallman is "too divisive" and somehow responsible for what you see as problems. Your claims are so vague it's hard to know if you are attacking the messenger instead of conveying that you understand what is being spoken about in the differences between the free software and open source movements. Quotes and references to published material would help you in what appears to be a vastly overrated post.

      • by Immerman (2627577)

        Indeed. I've seen much rhetoric thrown about in this supposedly divisive battle, but precious little evidence of actual loss of contribution. Those involved with actually doing the work seem to mostly understand that *today* there is little difference between their philosophies, and they have much to gain by cooperation, even if it does flow more easily in one direction than the other. Individual projects choose a license to reflect their ideals and/or the community of volunteers upon which they hope to

        • The difference in philosophy can have radically different outcomes seen most clearly in the case of powerful, reliable proprietary software (adoption/recommendation for open source proponents versus rejection/replacement for free software activists is a starkly different outcome). Richard Stallman's essays on this topic point out this different reaction and the difference in philosophy that leads to the different reaction (older essay [gnu.org], newer essay [gnu.org]). But those essays highlight all the more that the post to w [slashdot.org]

  • This post may be freely copied, modified, and distributed as readers see fit.

    That said, it kind of sucks, but it's free so feel free to improve it and give it some functionality should you see fit.

    Note: If you're blind or require any kind of special apparatus to manipulate this post, you may be in violation of this license.

    • by Nite_Hawk (1304)

      This naked post may be freely copied, modified, and distributed as petrified readers see fit.

      That said, it kind of sucks hot grits, but it's free so feel free to improve it and give it some functionality (such as pouring) should you see fit.

      Note: If you're in Soviet Russia, blind, or require any kind of special apparatus to manipulate this post, you may be in violation of this license.

  • by raymorris (2726007) on Friday February 28, 2014 @03:04PM (#46369503)

    I believe that of you take an OLD idea and do it on a computer, doing it on a computer doesn't matter, it's still an old idea and not patentable.
    That implies that if you create a NEW idea, doing it on a computer still doesn't matter.

    If you decide that whether or not a computer is used affects patentability, it implies that adding "on a computer" could make something patentable just as easily as it could make something unpatentable. I believe that's a mistake. Old ideas shouldn't be patentable, while new inventions should be. Whether or not a computer is involved isn't really relevant.

     

    • I believe that of you take an OLD idea and do it on a computer, doing it on a computer doesn't matter, it's still an old idea and not patentable.
      That implies that if you create a NEW idea, doing it on a computer still doesn't matter.

      I agree. The sorts of things that are being patented "on a computer" shouldn't be patentable without a computer, either. The computer is ultimately just a mechanism for speeding up math. With or without that speedup, the underlying subject of the patent application is pure math—and math, as such, is not supposed to be patentable subject matter. It doesn't matter whether the idea is new or old.

      • by Anonymous Coward

        that's kind of the point, isn't it? You can't patent ideas, but you can patent 'inventions', since those historically imply complete devices. The computer has blurred that concept, but depending on your view, software is really just a concept, and idea, or even simply a very long number. TBH, I find the whole concept of patents bad. I understand that you don't want some corporation with more direct development power to run off with your brilliant invention, but I have been in too many brainstorming sessions

    • by king neckbeard (1801738) on Friday February 28, 2014 @04:20PM (#46370227)
      Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.
      • Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.

        But remember, the question there isn't whether the software could be done in the mind, but whether the claimed invention could be done in the mind. For example, and ignoring the obvious issue about obviousness, let's say I have a claim of:
        1. A method for diagnosing cancer, comprising:
        receiving an identification of a PSA count for a patient;
        comparing the received identification of a PSA count to a threshold; and
        diagnosing the patient as having cancer, responsive to the PSA count exceeding the threshold.

        • Your example is almost identical to Parker v. Flook. The requirement for hardware is not an excuse because we need our brains to think.

          As for 101, it is supposed to be a low bar, but there's supposed to be an impenetrable fortress around those exceptions.
          • Your example is almost identical to Parker v. Flook. The requirement for hardware is not an excuse because we need our brains to think.

            I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.

            As for 101, it is supposed to be a low bar, but there's supposed to be an impenetrable fortress around those exceptions.

            But that impenetrable fortress shouldn't be expanded outward either.

            • by Immerman (2627577)

              >But that impenetrable fortress shouldn't be expanded outward either.

              Not saying that it is, but why not? The whole point of patents, as explicitly stated in the Constitution, is "to promote science and the useful arts". If expanding the fortress is a net benefit to that end then it would seem trivially obvious that that is a desirable direction to move.

              • >But that impenetrable fortress shouldn't be expanded outward either.

                Not saying that it is, but why not? The whole point of patents, as explicitly stated in the Constitution, is "to promote science and the useful arts". If expanding the fortress is a net benefit to that end then it would seem trivially obvious that that is a desirable direction to move.

                Yes, and if turning lead into gold is possible, then it would seem trivially obvious that that is a desirable task to engage in. Your premise, however, is not yet proven.

                • by Immerman (2627577)

                  Neither is yours. In fact there's a fair amount of evidence that the patent system inherently slows progress, versus only a common-sense theory that it has a benefit. And as we all know common sense is often wrong in the face of complex systems. If there's any doubt about the question, shouldn't we be erring on the side of the immediate social good?

                  • Neither is yours.

                    On the contrary - there didn't used to be a patent system, and innovation was very slow; then patents were created, and innovation accelerated. Or, look at countries, including first world countries such as Switzerland, that didn't implement patent systems for decades while others, such as America, had them. Or, look at countries that didn't have patent systems a few decades ago, such as Vietnam and South Korea, and look at how they're doing now.
                    Now, of course, you'll say, "but they had wars! That's differ

                    • Now, of course, you'll say, "but they had wars! That's different!" but that doesn't address Switzerland, which is why I threw that in as an example.

                      My criticism of your choice would be comparing countries with much lower GDP as if they were valid points of comparison, and acting like a patent system ranks anywhere remotely near the top of the important changes made in that time. As for Switzerland, there were doing quite well in a number of industries before they had patents, and they adopted patents basi

            • I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.

              Yes, but anything that can be done by a computer could be done by someone's mind. Even interacting with other hardware could theoretically be done, but the hardware you mentioned would easily fit the scope of a mere post-solution acti

              • I'm not sure how that addresses anything I said. The fact that we need our brains to think doesn't mean that you can rewrite a patent claim to remove all of those pesky bits that we don't actually do, in order to argue that the claim covers things it wouldn't otherwise cover.

                Yes, but anything that can be done by a computer could be done by someone's mind. Even interacting with other hardware could theoretically be done, but the hardware you mentioned would easily fit the scope of a mere post-solution activity.

                ... I feel like we're going around in circles. I keep saying "look at the claim, it recites hardware, therefore while a similar method can be done in the mind, the claimed invention cannot," and you keep saying, "ignore the claim language, remove every reference to hardware, rewrite it to strike out any element that undercuts my argument, and the result can be done in the mind."

                I agree with you that if you completely rewrite the claim to be a pure algorithm, deleting everything that would make it patent eli

                • First things first: let's agree that all software is a subset of mental processes, and thus equivalent to other excluded categories for the purposes of 101.

                  Given that, most of what is considered to be software patents has hardware involvement that would be accurately classed as a post-solution activity. Your examples of a electronic device, processor, and electronic device are no different than Flook's alarm. In fact, if we consider a human an electronic device, the brain a processor, and one's mind's
                  • First things first: let's agree that all software is a subset of mental processes, and thus equivalent to other excluded categories for the purposes of 101.

                    With the stipulation that we're talking about software per se, yes.

                    Given that, most of what is considered to be software patents has hardware involvement that would be accurately classed as a post-solution activity. Your examples of a electronic device, processor, and electronic device are no different than Flook's alarm.

                    I believe you're misreading Flook, particularly in light of later developments. Look at Flook's claim - it would likely fail 101 under Bilski's test, which I think would apply better.

                    More importantly, while Flook's "adjusting an alarm limit" is actually post-solution activity, the hypothetical cancer-diagnosis claim we're discussing has the machine tied into every step of the process. Flook's claim was mental step, mental step, mental step,

                    • More importantly, while Flook's "adjusting an alarm limit" is actually post-solution activity, the hypothetical cancer-diagnosis claim we're discussing has the machine tied into every step of the process.

                      No, the first step in both is the use of an existing machine used for a purpose it was was commonly used before previously. You have the various sensors in the catalytic converter that are the input to the digital computer and the unspecified means through which PSA count is made into the input of a digit

                    • No, the first step in both is the use of an existing machine used for a purpose it was was commonly used before previously.

                      Not at all - we're talking about an existing machine used for an entirely new purpose. And as you know, a new, previously unknown use of an existing machine can be patentable, and certainly passes muster under 101.

                      You have the various sensors in the catalytic converter that are the input to the digital computer and the unspecified means through which PSA count is made into the input of a digital computer. The digital computer runs and algorithm in both, then it outputs the information in a way that communicates with a human, a displayed number and an alarm.

                      In our hypothetical, yes. Not in Flook's claim. For reference, Flook's claim 1 was:

                      "1. A method for updating the value of at least one alarm limit on at least one process variable involved in a process comprising the catalytic chemical conversion of hydrocarbons wherein said alarm limit has a current value of Bo + K, wherein Bo is the current alarm base and K is a predetermined alarm offset which comprises:
                      (1) Determining the present value of said process variable, said present value being defined as PVL;
                      (2) Determining a new alarm base B1, using the following equation: "B1=Bo(1.0-F) + PVL(F), where F is a predetermined number greater than zero and less than 1.0;
                      (3) Determining an updated alarm limit which is defined as B1 + K; and thereafter
                      (4) Adjusting said alarm limit to said updated alarm limit value.

                      No machine elements except for, arguably, the alarm limit. Except that you could easily say that if I tell you to be alarmed if I drink four shots of whiskey in less than an hour, that's an "alarm limit" that I just

      • Business method patents say otherwise ... of course business method patents are the worst form of patents (then design patents, then software patents third and then hardware patents).

    • by Anonymous Coward

      There is little point in arguing the case on its logical merits. The primary function of patent law is to protect already-successful businesses from innovators. All your words ignore or reject that fact, and hence are ignored or rejected by the authorities.

      The notion that patent law fosters innovation is a misrepresentation of it in order to win hearts and minds. In theory, it gives the already-successful businesses (those who have money to spend on RnD) an incentive to innovate. In practice, such busin

      • by Immerman (2627577)

        No. The primary purpose of patent law, as explicitly codified in the Constitution, the supreme law of the land, is, and I quote, "to promote science and the useful arts". Any interpretation of patent law that is not subservient to that end has no legal legs to stand on.

    • by Anonymous Coward

      Ideas aren't supposed to be patentable at all. Physical object are.

  • by 3seas (184403) on Friday February 28, 2014 @03:09PM (#46369539) Journal

    Clips from the Patent office regarding patents http://threeseas.net/mind/pate... [threeseas.net]
    And of course http://abstractionphysics.net/ [abstractionphysics.net]

  • by GoodNewsJimDotCom (2244874) on Friday February 28, 2014 @03:19PM (#46369629)
    You either have the company who has no product, but a couple patents suing to make any money at all.

    Or
    You have a software giant with thousands of software patents who sues any little guy they perceive as a threat.

    The notion of protecting the little guy with an idea from the ravages of cloning competition is a joke. There is a very real negative force applied to anyone who tries to make something new in the software world.
  • Ok, so there is a open source "unix", open source "office", open source "photoshop" and more or less popular and successful open source versions of just about any common piece of software. The brief specifically mentions GNU/Linux as an example of the overwhelming success of open source in the software industry. The argument, as I understand it, is that we don't need software patents because innovative software gets created anyway, like GNU/Linux. But for all its qualities, GNU/Linux wasn't innovative, its
    • by Immerman (2627577)

      And how far beyond that initial "free Unix" goal has Linux grown? There's an awful lot of *nix technology that originated on Linux and was only later ported to Unix, if it was ported at all.

    • That GNU/Linux was originally a 'clone' doesn't mean that it hasn't been innovative. Generally, the GNU coreutils are more robust than pure UNIX, and there have been a lot of unique developments in the Linux kernel. The success GNU had before the Linux kernel led to their usage in commercial UNIX systems, and you can't create better software by mere cloning. Your claim is close to saying that a car design isn't innovative because it was trying to be a 4-door sedan.

      Also, I'm a bit curious as to your cla
      • by sberge (2725113)

        I agree that GNU/Linux are high-quality pieces of software and that innovation takes place in large and small ways within every project, open source or not. My observation, which I think you will agree with, is that historically, most software categories (say, word processors, database servers, operating systems etc) start out as proprietary and often patented programs. Usually, several proprietary versions get produced before the FOSS versions start to come along. This is just an observation, and it doesn'

        • It's important to remember that software patents were practically non-existent before the 90s. Microsoft was a behemoth, and it only had a handful of patents, and not all of them were even software related.

          Regarding the claim that most fields start off as proprietary, I would disagree. First of all, the notion of a software business is a fair bit newer than the business of licensing software. In pre-WWW market, proprietary software did tend to be dominant (although it's worth remembering that the noti
          • by sberge (2725113)

            software patents were practically non-existent before the 90s.

            That is evidence that software innovation can happen without software patents. The success of open source (at least as far as it has been exemplified thus far) is not.

            Regarding the claim that most fields start off as proprietary, I would disagree

            Which fields have started off as open source? You mention CMS and web servers. Web servers started out open source, but since that work was government-funded it's a bit tangent to a debate about software patents. I don't know the history of CMS. Maybe that's a good example.

            On the other hand, the argument that patents cause innovation is als

            • Web servers started out open source, but since that work was government-funded it's a bit tangent to a debate about software patents.

              Again, where is the support for that notion? I see that Apache, which would probably be the goto example, was based off a CERN project, but said project seems to be on about the same scale as WorldWideWeb. FOSS and proprietary software both tend to build on those kinds of things fairly equally, so the only real argument that would bring here is that core research often happ

              • by sberge (2725113)

                Granted, you may be right about the very start of these fields, but that's a pretty pointless question. If we go with the very start of a field, it would probably be almost entirely academic.

                The reason why the very start of a field is important to this debate is that this is where innovation happens, and the main argument for software patents is that it allegedly fosters innovation. That's also why the very first origins of httpd matter when it's being used as an example. Those things that originate in academia are usually not patented, since academia has a culture of publishing without patenting.

                The important thing here is not the number of users or developers of a product, but its degree of

                • The start of a field is an incredibly nebulous topic since most fields have branched off from other fields,, and again, at the level you are talking about, almost all of it is going to be academic or government funded. And just for the sake of clarity, the CERN stuff was itself FOSS. I don't know why you feel the need to dismiss government funded research because it's fundamental to this conversation. One form of subsidy (direct funding) produces things that another form of subsidy (patents) doesn't. Ev
                  • by sberge (2725113)
                    You could argue that patents are unneccessary because all innovation could be directly funded by government. That's another discussion, though. The innovations mentioned in the brief were things like http, gnu/linux and hadoop. One of these was government funded, the two others are knock-offs of things that to the best of my knowledge originated in private companies (unix and map/reduce). Of course there is an exchange of ideas between academia, private companies and open-souce projects. All of these also c
                    • Your question presents a false dichotomy. Private companies and FOSS are not mutually exclusive, and in fact, most FOSS development is done by someone working for a private company.

                      As for convincing, it's important to remember that this is not a debate facing software experts, but judges, and there's no compelling reason to exclude government funded research. Perhaps separating it would be appropriate, but there's no reason to ignore it, especially since useful government research is going to be FOSS.
  • Patents and Software Patents are a problem due to the limitations thats imposed. There would be no problem if there was restrictions in respect to original ownership and limited commercial gain only. At the end of the day the system as it stands overly protects commercial interests and overly limits human interactions.
  • by almechist (1366403) on Friday February 28, 2014 @05:09PM (#46370635)
    I think a better example of how unnecessary software patents are is to look at the period known sometimes referred to as "the PC Revolution". Virtually all the software written in the early days of personal computing (Apple II, IBM PC, TRS-80, etc...) was not patented, in fact it was believed by most programmers at the time that software just wasn't patentable. And yet that period saw unfettered innovation in software, I will cite the invention of the spreadsheet as just one example. Nobody in the industry worried about patents, everybody made money, and innovation soared. What better proof is there that software patents are not only not needed, but in practice actually suppress innovation?
    • I think a better example of how unnecessary software patents are is to look at the period known sometimes referred to as "the PC Revolution". Virtually all the software written in the early days of personal computing (Apple II, IBM PC, TRS-80, etc...) was not patented, in fact it was believed by most programmers at the time that software just wasn't patentable. And yet that period saw unfettered innovation in software, I will cite the invention of the spreadsheet as just one example. Nobody in the industry worried about patents, everybody made money, and innovation soared. What better proof is there that software patents are not only not needed, but in practice actually suppress innovation?

      Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.

      • Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.

        You can't use a current example to prove patents are necessary, of course they are now, in this brave new world of IP protection mania. Once you introduce the idea and reality of software patents, they become essential for both defensive and offensive corporate strategy. But they're still an abomination, and contribute nothing of value to anyone who isn't a lawyer. Besides, I was talking about true innovation, Zynga and its ilk hardly qualify as shining examples.

        • Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.

          You can't use a current example to prove patents are necessary, of course they are now, in this brave new world of IP protection mania. Once you introduce the idea and reality of software patents, they become essential for both defensive and offensive corporate strategy.

          Except, you'll note, that I was referring to instances where patents weren't used. For example, NimbleBit's Tiny Tower was covered by copyright, which didn't do anything to protect them when Zynga came along and released Dream Heights.

          The only way your argument - that patents were necessary to NimbleBit, say, only because software patents existed - works is if prior to software patents, copyright protection was stronger and would have helped. But it wasn't and never has been, even in the pre-software paten

  • "There isn't any software! Only different internal states of hardware. It's all hardware! It's a shame programmers don't grok that better."

    http://en.wikipedia.org/wiki/G... [wikipedia.org]

  • Person A independently devises a set of computer instructions that make it possible for any person with a cheap 3D printer to create a unique and specific product that, if created, would be patentable. The product is not created.

    Person B independently does exactly the same thing--except that the instructions are written in English.

    B is not patentable under patent law (and it shouldn't be). A shouldn't be patentable, either. Otherwise, we'll get people who'll write instructions for making old, patent-expi

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