
 FSF joins forces to fight software patents in U.S. Supreme Court - conductor
https://www.fsf.org/news/fsf-joins-forces-with-software-freedom-law-center-and-open-source-initiative-to-fight-software-patents-in-u-s-supreme-court
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JumpCrisscross
What would happen if software were no longer patentable? Finance may offer us
a guide. Financial innovations are not patentable [1]. This has two effects:

(1) Good ideas drawing on common knowledge and resources catch on fast. This
compresses the time between invention and commoditisation. Those who rapidly
implement ideas, whether their own or others', are rewarded. Scale and agility
gain currency. Downside: the blind copying of competitors' ideas.

(2) Good ideas drawing on scarce knowledge or resources are protected
fiercely. This comes in the form of secrecy - think hedge funds. It also comes
as increased pay for producers. In the late 1970s Salomon Brothers helped
invent the mortgage-backed security, giving them a de facto Wall Street
monopoly. This made everyone involved on the mortgage desk incredibly
valuable. Salomon did not pay them accordingly and so lost its storied
monopoly.

[1] [http://blogs.reuters.com/felix-salmon/2010/11/19/can-you-
pat...](http://blogs.reuters.com/felix-salmon/2010/11/19/can-you-patent-
financial-innovations/)

~~~
chalst
Good parallel. One of the points for having patents was to reduce the amount
of secrecy in technology IP rights allow companies to share knowledge without
fear of competing against their invention. This is covered by a form of IP:
trade secrets.

This is a legitimate argument for patents in several fields, and for allowing
patents for software parts of machines (users of such machinery are better off
as a group if they can find out about its workings). Perhaps users of
securities are put at risk by the trade secrecy governing securities
innovation and so financial patents should be allowed: certainly, failure to
understand risks associated with financial instruments was a large part of the
problem in the 2007/8 financial crisis.

For software it is not so useful: patented software typically is triple
protected: by the patent, by copyright, and by secrecy, since the patent
applies to ideas in the source code that are not visible in the deployed
binary. So software patents do not promote transparency.

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jfasi
In anticipation of a slew of "this is so obvious" comments that quote from the
brief, I urge you to remember that there's an opposing side to this argument:
no matter how compelling or obvious this brief's arguments may seem on their
own, the court will be weighing them against the arguments of the opposing
side.

Without seeing those arguments, we can't really make any substantive
judgements about this brief.

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guelo
The opposing argument is "we don't want to lose our ability to crush new
innovations and keep lawyers rich".

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WildUtah
Yeah, take a look at this pack of horrible deceptions stopping just short of
lies that the BSA/Microsoft has submitted to the court:

[http://www.bsa.org/advocacy/~/media/Files/Policy/Patents/BSA...](http://www.bsa.org/advocacy/~/media/Files/Policy/Patents/BSACLSAmicus.ashx)

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kodablah
I have read the brief. It basically says to constantly apply the "machine or
transformation" test to a patent to determine if it's standalone software or
something substantive. It also mentions how some software doesn't rely on a
specific type of machine to execute.

How is the PTO expected to be able to determine the difference between a
"standalone software" patent from "software as part of a
machine/transformation" patent? And if they can't and the law is only applied
in retrospect (e.g. patent validity challenges), how does this abstract
"machine or transformation" concept prevent litigation which seems primarily
driven by intimidation not expectation of victory.

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michaelhoffman
The PTO would probably revise the Manual of Patent Examining Procedure to
include any new direction from the Supreme Court. See the current section on
patent subject matter eligibility:

[http://www.uspto.gov/web/offices/pac/mpep/s2106.html](http://www.uspto.gov/web/offices/pac/mpep/s2106.html)

~~~
monochromatic
Of course. But without a bright-line test that can easily be applied by the
corps of non-lawyer patent examiners, what's the point? And does the Supreme
Court _ever_ really give us a bright-line test?

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rayiner
Some of this is verging on arguing how many angels can dance on the head of a
pin. Trying to draw lines within the framework if section 101, despite the
general inadequacy of that framework. The flaw of section 101 continues to be
that the law is decoupled from the economic rationale for patent. To whit:
patents exist to protect expensive capital investment in research from free
riding, but judges are not allowed to consider the scope of that capital
investment in determining patentability. The law continues to adhere to that
outdated notion that innovation can happen in a "flash of insight."

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WildUtah
I thought the Amicus from Schultz, Love, Bessen, and Meurer was a lot better
than the FSF brief. It explains the issues much better and suggests more
constructive conclusions that would lead us a lot closer to outright abolition
of software patents.

[http://marginalrevolution.com/marginalrevolution/2014/03/sof...](http://marginalrevolution.com/marginalrevolution/2014/03/software-
patents-are-not-good-property-rights.html)

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rayiner
Software patents in general aren't game here. This is about how courts should
draw the line between applications of principles, which are patentable, and
the physical principles themselves, which are not. This has particular
relevance to software patents, because it is in this area that there is the
greatest charge that people are trying to patent general principles.

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rqebmm
Can someone explain to me exactly what it would mean if software ideas were no
longer patentable?

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georgemcbay
Ask 10 people this question and you'll get 11 different answers, but IMO the
practical impact will be the lawyers will make less money and there will be
less multi-billion dollar lawsuits, but the industry will keep trucking on as
always.

The idea of software being patentable is actually a very new concept. Though
there are some rare examples of software systems being patented back in the
1980s, it wasn't until the late 1990s that software patentablity was a widely
accepted concept, prior to then software was seen as a mathematical construct
and thus explicitly excluded from patents. The industry got along fine back
then on copyright laws alone and will get along fine with or without patents
in the future.

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danielweber
Worrying about the giant lawsuits is the wrong angle.

Any time MegaCorp 1 accuses MegaCorp 2 of stealing its stuff, it's going to be
expensive to resolve. Even if you draw the line at "copyright, not patent"
MegaCorp 2 is just going to push the line that much further in how closely
they can copy MegaCorp 1.

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georgemcbay
It is way easier to avoid committing a copyright violation than a patent one
because the USPTO has let way too many fundamental and obvious ideas be
patented. As a developer, if I write 100 lines of code I have probably
violated at least one active patent and probably more like 3, completely
unknowingly.

Copyright violations require a much more willful sort of of idea "theft".

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rayiner
I agree with both of you. On one hand, when you have a personal pissing match
like Apple v. Samsung, if it wasn't about patents it'd be about something
else. On the other hand, requiring a showing of willful violation would cut
down on patent suits against smaller companies.

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belorn
Also, a larger part of the Apple v. Samsung cases was about design patents
rather than software patents.

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yuhong
Personally, I hope at least that they declare that math is not patentable even
if executed on a computer.

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dTal
What is software if not math executed on a computer?

