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Recipient of First Software Patent Defends Them 392

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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Recipient of First Software Patent Defends Them

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  • by NickFortune ( 613926 ) on Tuesday December 01, 2009 @07:23AM (#30281506) Homepage Journal

    Indeed. I though TFA was very weak. His points were:

    1. If you can do it in electronics, you can do it in hardware: the electronics would be patentable
    2. Software patents can make a shitload of money for someone
    3. I think software patents are pretty neat!

    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" [] over on Groklaw. It's well-researched, well-argued, and informative.

  • by Lundse ( 1036754 ) on Tuesday December 01, 2009 @07:41AM (#30281586)

    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: []

    Full disclosure: it's mine.

  • by Mr2001 ( 90979 ) on Tuesday December 01, 2009 @08:04AM (#30281732) Homepage Journal

    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.

  • by Anonymous Coward on Tuesday December 01, 2009 @09:28AM (#30282208)

    An invention that can easily be examined and cloned doesn't need patent protection.

    Did you mean to say "that can't easily be cloned"?

    No. He meant to say something more like "The benefits that patent law seeks to achieve are not relevant in the case of an invention that can easily be examined and cloned anyway". As he said, the purpose of patent law iwas originally to encourage disclosure of how the inventions work. So if anyone could tell how it worked anyway then no patent should be given. However, what he's missing is that the purpose of laws evolve over time. The purpose of patent laws today is primarily to protect the flow of money to certain entrenched interests. In serving that purpose, it makes a lot of sense to grant patents even when someone can trivially tell how the invention works anyway.

  • by Bazar ( 778572 ) on Tuesday December 01, 2009 @09:31AM (#30282242)

    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.,_Inc._v._Microsoft_Corporation []

    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.

  • by mcvos ( 645701 ) on Tuesday December 01, 2009 @11:33AM (#30283694)

    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.

  • by greensoap ( 566467 ) on Tuesday December 01, 2009 @12:22PM (#30284374)

    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 []. 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 quite high.

  • by Absolut187 ( 816431 ) on Tuesday December 01, 2009 @12:25PM (#30284426) Homepage

    PoIR's main point is provably false in this case.

    PoIR says:

    I see the situation like this. The authors of legal briefs and court rulings have enough of an understanding to feel confident they can write meaningful arguments on the topic. But yet they do not understand computers and software well enough to reach technically correct conclusions. The unfortunate result is legal precedents that do not connect with reality.

    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. []
    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.

  • by Absolut187 ( 816431 ) on Tuesday December 01, 2009 @12:48PM (#30284752) Homepage

    I'm sorry, PoIR fails.

    Take this statement:

    For example consider this sentence from In re Alappat:

    We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.

    In a single sentence the court tosses out the fundamental principle that makes it possible to build and sell digital computers. You don't need to create a new machine every time you perform a different computation; a single machine has the capability to perform all computations. This is what universal Turing machines are doing.

    PoIR completely misunderstood the court. The court was saying that by programming a general purpose computer to perform a specific task, the programmer has created a new special purpose computer (comprising the general purpose hardware and the special purpose code). PoIR responds by pointing out that a general purpose computer can "perform all computations". This is a non-sequitur. The fact that you don't need special-purpose HARDWARE is irrelevant. The programmer has created a functionally (not physically) NEW MACHINE. It has new abilities. While it is not physically different, it is functionally different. The court has NOT "tossed out the fundamental principle that makes it possible to build and sell digital computers." To accuse the court of that is frankly laughable.

    PoIR fails. Miserably. Sorry.

  • by s73v3r ( 963317 ) <> on Tuesday December 01, 2009 @01:58PM (#30285742)
    The idea of patents came up during the Renaissance, although I'm not sure if they were actually referred to as "patents" back then. Master glass workers would spend their lifetimes coming up with new ideas for their craft, and perfecting them. Not wanting to lose the advantage for their guild, they wouldn't share their process, except maybe with some of their apprentices. However, if the master craftsman were to die before he shared it, then all that knowledge would be lost. Patents were created as a way for that knowledge to be passed on, and yet still give the inventor time to use his creation to his advantage.
  • by Absolut187 ( 816431 ) on Tuesday December 01, 2009 @06:33PM (#30290094) Homepage

    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 USC 102. In either case, NO PATENT.

Some people manage by the book, even though they don't know who wrote the book or even what book.