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The Software Patent Debate Is Incorrectly Framed 274

An anonymous reader writes "It doesn't matter whether a true invention is implemented in hardware or software, it should still be patentable, argues Marty Goetz — the man who was granted the first software patent in 1965." The crux of the argument, according to the author: "Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm."
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The Software Patent Debate Is Incorrectly Framed

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  • by MSojka ( 83577 ) on Tuesday November 01, 2011 @08:09AM (#37905810)

    Hardware is just physics and physics is just applied mathematics, so everything can be reduced to a mathematical problem ... if you're willing to be silly and unhelpful enough.

  • flawed logic (Score:3, Interesting)

    by moronoxyd ( 1000371 ) on Tuesday November 01, 2011 @08:12AM (#37905828)

    Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm.

    So because the two things are similar in one respect they should be treated as if they are the same?
    My sister and I bear the same family name, so we are the same?

    Flawed logic at it's best.

  • by Anonymous Coward on Tuesday November 01, 2011 @08:16AM (#37905858)

    What the fuck does that have to do with anything? A kid in a basement could develop a new hardware design as well. Or invent a new mousetrap, which would be patentable. But in the end, the cost and complexity of the equipment used to manufacture an invention have absolutely jack shit to do with the patentability of that invention.

    RTFA, that was exactly Goetz's argument on the second page:

    The software products industry is competitive and needs patent protection as much as any other tech industry. Those software doomsayers who say software is just ideas, mental processes or mathematics would change their mind if they examined the different phases of the life cycle of a software product.

    During the definition phase software companies describe its functionality, its specifications, the environment in which it must operate, and its operating characteristics. During the design phase, they develop and define all its interfaces, break down the functionality into modules, and do all the engineering so that the product can be properly implemented, maintained and enhanced during its lifecycle.

    During the implementation phase the software is debugged, tested, and goes through quality assurance. During the delivery phase there is alpha and beta testing, documentation, installation, and training. Often software companies sell the product to other companies where the software becomes a component of a larger system and is repackaged.

    During the maintenance phase the company warrants its workmanship, and guarantees the correction of errors and defects. Finally, during the enhancement phase the software is improved, enhanced, upgraded, and new models, or releases, are announced.

    Note that these terms are all consistent with a manufactured product: research, competitive analysis, functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, repackaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.

  • Reality check? (Score:5, Interesting)

    by zmooc ( 33175 ) <(zmooc) (at) (> on Tuesday November 01, 2011 @08:36AM (#37906002) Homepage

    I totally agree with what he says. However, he misses the point that's called reality.

    Problems that could easily be solved in hardware, would require a description of this hardware. A transistor here, a flywheel there and a plate of metal here in order to achieve X. It's that description that is then patented, not its functional result. Alternative implementations would then not be covered by the patent so anybody that finds a way to achieve X with a piece of plastic instead of metal should not be bothered by it.

    That's not what we see in software patent land today; instead of the technical design, the functional result is patented. There are a million ways to implement slide-to-unlock and somehow Apple has a patent on all of them. That's odd, since most of these million ways have nothing to do with the original research Apple has done in order to obtain the patent.

    If the same standards for granting a hardware patent would be applied to software patents, I could probably live with them (since in that case there would hardly be any software patents). Now I cannot, especially not when selling software in the USA.

    Also, mathematical formulas cannot be patented. Therefore the comparison with mathematics is moot. What can be patented, is the practical use of that specific formula. Also note, the patent Marty Goetz was granted was not a software patent in the sense that we think of it today; his patent was valid ONLY when used on a machine using two tape reels. A pure software implementation would NOT have been patentable. Therefore using this patent as an example of a software patent is misleading; it is not a software patent, it is a regular patent that has part of the solution implemented in software.

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