

Encourage the USPTO to stop issuing software patents; deadline September 27 - tjr
http://www.fsf.org/news/uspto-bilski-guidance

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awakeasleep
Hey guys, all it takes is a simple email, and they provide the address on the
webpage. They also provide a form email.

I wrote my own:

 _I believe software patents have deleterious effects on both an individual
and societal level.

As a software developer, my job is to encode symbols within a computer. Simply
to represent an idea in the precise medium. Then I manipulate those symbols in
whichever way seems logical.

To patent that process, to claim certain methods of writing and thinking are
off limits, does not contribute to a free society, no matter how much money it
allows an entity to make. Because a computer is only a tool for the mind, as a
hammer is an extension of the arm. Patenting patterns of codified thought
makes no more sense than patenting swings of the hammer._

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nkurz
Sent mine:

 _I would encourage you to reduce or eliminate the use of "Software Patents".

I am a talented computer programmer, of the sort whom one might expect would
be the beneficiary of such patents. Instead, they are a disincentive for me to
do any work in the field. I do not believe it is possible to release any
significant piece of software in this country without exposing myself to undue
legal liability through patent infringement.

This is not because my ideas are not original, but because too many unduly
broad patents patents have already been issued. If properly challenged, many
of these patents would fall due to obviousness or evidence of prior art. But
lacking the resources to mount such a defense, I simply avoid making creations
that would otherwise be of benefit to society.

I do not believe this is the intended effect of patents. I and the country
would benefit from a better law._

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Elite
>this process will be overseen by David Kappos, the current director of the
USPTO and formerly an attorney at IBM in charge of their heavy-handed patent
strategy.

Looks like the deck is already stacked. Are there any companies or elected
officials with significant political/financial capital aggressively
campaigning for this? This movement needs a champion to make this topic
relevant to bureacrats and I don't know if Stallman's the guy.

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adamtj
How are software patents different than non-software patents? It seems to me
we should encourage the USPTO to stop issuing silly patents, software or
otherwise. Or we should resist all patents. But, if a patent system is a
worthwhile thing for a society to have, then software patents are as
legitimate as any other.

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Stephan_
Patents are meant to spur innovation and thereby improve social welfare. Just
because this may work in certain industries, doesn't mean that it
automatically works in other industries. There's a lot of evidence that the
costs of software patents to society are higher than their benefits.

~~~
billmcneale
> There's a lot of evidence that the costs of software patents to society are
> higher than their benefits

Where is that evidence? The US seems to be innovating quite a bit in the
software area compared to other countries.

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Stephan_
How often have you heard or read about a piece of software that someone
developed only because it could be protected by a software patent, about a
software innovation that would have been too costly to develop if it couldn't
be protected by patents?

And on the other hand, how often have you heard or read about programmers and
companies worrying about unknowingly infringing on software patents, about
companies getting sued by other companies that turn whole fields of software
into minefields, or about developers or companies that couldn't (afford to)
implement the best known algorithm for an application, because someone else
had been granted a monopoly on using that algorithm.

~~~
billmcneale
You're just offering indirect evidence, I'm giving you the concrete fact that
the US is one of the most innovative software producers.

At least in the US, you can't create a start up and just create a knock-off of
an existing product: you are _forced_ to innovate because of software patent
laws. This is probably why the US is striving while countries that don't have
such laws such as Chine hardly innovate at all.

~~~
Stephan_
But where is your direct evidence that software patents have anything to do
with the US being "one of the most innovative software producers"?

I'd also argue that it's mainly copyright law and trademarks that prevents the
kind of product piracy that is prevalent in certain countries with a less
developed legal system, at least with regard to software products.

~~~
billmcneale
> But where is your direct evidence that software patents have anything to do
> with the US being "one of the most innovative software producers"?

That's not what I'm arguing. All I'm saying is that given the fact that US is
one of the most innovative countries in the software area, the burden of proof
is on those who claim that the software patent system is broken.

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billmcneale
You will have to offer evidence that a patentless system works better than the
current one. The US seems to be producing a large amount of software
innovations while China (which doesn't have software patents) produces more
cheap copycats than true innovations.

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nix
Note that the USPTO is asking for comments on how it should comply with the
Bilski decision, not for rants about software patents in general. Your
comments will presumably carry more weight if you can explain why many
software patents have more in common with business methods than with machines
or transformations.

This looks like a good place to start:
[http://en.swpat.org/wiki/Bilski:_analysis_of_Supreme_Court_d...](http://en.swpat.org/wiki/Bilski:_analysis_of_Supreme_Court_decision)

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TrevorJ
What fallout would this have in terms of existing companies who currently hold
patents vs. new companies who have to innovate under a climate where there
can't protect their work to the same extent? Wouldn't this create an unfair
advantage for companies who already hold software patents?

I'm all for a reversal of the patent stupidity in the software sector, but
unless it is retroactive to some extent I can see it scaring away innovators.

~~~
patrickaljord
> a climate where there can't protect their work to the same extent?

Nobody is safe against patents, not even Microsoft, IBM, Google or Apple. And
patents are only for 15 years so it's not like you'll have to wait 100+ years
like with copyright.

~~~
TrevorJ
I agree, the current system is flawed too. However, under the "No new software
patents" policy, lets say company A has x number of preexisting patents, and a
new company wants to get into the field, they can't leverage and of company
A's innovations, but company A could use anything company B comes up with
however they like. That seems like a dealbreaker for any new company trying to
raise capital.

~~~
lutorm
Company B just have to not tell Company A what they come up with. It's called
"trade secrets".

~~~
TrevorJ
If that was all there was to it then nobody would bother to patent anything
_now_.

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tzs
> The USPTO can, and should, exclude software from patent eligibility on other
> legal grounds: because software consists only of mathematics, which is not
> patentable, and the combination of such software with a general-purpose
> computer is obvious.

Software does not consist of only mathematics. One might use mathematics as
part of understanding how a particular piece of software works, but that is
not really different than the way one might use mathematics to understand how
an electronic circuit works.

~~~
amalcon
All a computer can do is mathematics * . This is essentially axiomatic: the
term "algorithm" is loosely defined as "what a computer can do."

If you think your software is doing anything else, you're looking at an
abstraction on top of something mathematical.

* - OK, OK, they can also generate heat, RF, and other byproducts. Those things have little to do with software.

~~~
tzs
"All a computer can do is mathematics"

All an electrical circuit can do is physics. Therefore, electrical inventions
should not be patentable as all they are is physics.

~~~
amalcon
An electrical circuit does not "do physics." It relies on physics, but it does
not "perform physics" in the same way that a computer performs calculations.

This is why software patents are always framed in terms of _a machine
performing an algorithm_. The "machine-performing-an-algorithm" construct is
not itself mathematical, though it does rely on mathematics. The FSF's
argument there is that having a machine perform an algorithm is now
sufficiently obvious to fall under the obviousness restriction (while perhaps
it was not so obvious back in the 1950s). This leaves only the algorithm
itself, which is mathematical.

~~~
tzs
Hypothetical #1. I invent a very clever, useful, non-obvious electrical
circuit that performs a valuable transformation on input analog signals.
Patentable.

Hypothetical #2. I come up with the same idea as in #2 but conceive of it as a
series of steps applied to a digitized signal. Each step is done as a little
algorithm. It turns out that there is an isomorphism between these algorithmic
steps, and what the circuit components in hypothetical #1 do. In other words,
I've essentially conceived it as a simulation of a physical circuit.

Why should #2 not be patentable? It is in pretty much all meaningful ways the
same invention as in #1. It is just implemented different. In #1, it is
implemented by taking (non-patentable) physics building blocks and putting
them together in a new, useful, non-obvious way. In #2, it is implemented by
taking (non-patentable) algorithmic building blocks and putting them together
in a new, useful, non-obvious way.

Conversely, would you argue that anything capable of being simulated via a
computer should not be patentable?

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amalcon
I think I see your point. I'll restate it the other way around, though,
because that direction makes more sense to me. Please tell me if I got it
wrong.

Suppose I have an algorithm for doing some useful transformation on an input.
Suppose we were in an environment in which this algorithm could not be
patented. I could instead sit on the algorithm and build a circuit in hardware
accordingly, patent the circuit, and sell that while keeping the algorithm
secret. Ignore that it could be reverse-engineered.

Is that scenario good for anyone? Probably not. It would be better for
everyone if the algorithm were made public, even if it were simply unused for
the patent term, than if it were to lie hidden on a disk somewhere. Why does
it make sense to grant a patent to the circuit, but not the algorithm?

I admit, that situation is a little inconsistent. This is partly because the
whole concept of the patent is inconsistent, but we keep it around because we
haven't found a consistent way to fulfill the same purpose. Consider a third
option, though:

Suppose that the guy with the useful algorithm is Joseph Fourier. He patents
the software techniques to produce Fourier series. Now, anyone making software
that relies on Fourier series needs to pay Joseph Fourier, which is fine.
Anyone who builds a hard circuit would likewise need to pay for the privilege,
due to another patent. What about a person executing the exact same software
instructions by hand?

Clearly the person may execute the algorithm by hand without paying. Why
should they not need to pay, when the only thing the software author has done
is the convenient shortcut of _using a computer_? In order to be similarly
consistent, we'd need to require the manual executor to pay. Unfortunately,
the manual executor is every collegiate-level math student.

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cma
Software can be covered by both copyright and patent; isn't it unique in that
regard?

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jcroberts
I refuse to believe in imaginary property.

