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EFF: Stupid patents are dragging down AI and machine learning (arstechnica.com)
239 points by Deinos on Oct 1, 2017 | hide | past | web | favorite | 139 comments

The unfortunate reality is that the 20th century legal code is ill equipped for dealing with software firms. Up until about 1980-1990 it didn't matter all that much, but tech firms are now the largest, fastest growing and most powerful companies in the world. We can't punt on these issues any more.

There are 3 forms of IP protection: copyright, patents, and trademarks. The crux of the issue is that, for software, copyright protection is too weak and patents are too strong. So called "stupid patents" are a symptom of this issue, but not the cause. Software ideas don't work well under either of these existing protection models. Further, software patents are especially broken since they've deviated from their originally intended purpose of helping fledgling inventors launch their creations without larger firms stealing their work. Now every large firm has an arsenal of allegedly "protective" patents that can be swiftly mobilized to crush upstart competitors. Similarly, patent trolls can sit on the sidelines and exact royalties far beyond the economic value that their inventions contribute. Bluntly, there needs to be a new form of IP protection to deal with this reality -- this isn't to say I have any strong ideas of what this form of protection should be, just that these are the characteristics of the problem.

The same core issue is starting to become apparent in anti-trust law. These laws are inappropriate for tech firms because they don't scale like traditional businesses (how do you deal with an industry with super high HHI but massive barriers to entry and no easy way to split up existing competitors?), but that's a topic for another thread.

I don't agree with your analysis that copyright is too weak.

Copyright was helpful in an age of boxed products, but is now largely irrelevant in an age of SaaS.

But in an era of SaaS, trade secrets law seems like more than enough to defend a company's IP.

If you invent a new data storage system, as another comment suggests, you can protect it quite effectively with trade secrets if you start a data storage SaaS.

IANAL, but trade secrets law also seems to provide some protection against reverse engineering even if you ship a boxed product: http://cdfirm.com/pitfalls-to-the-defense-of-reverse-enginee... Though it's not iron clad and varies by jurisdiction.

Personally, I'm much more comfortable with trade secrets law being iron-clad, rather than patents existing.

Copyright and trade secret is too weak. How do you protect, e.g., video encoding techniques with copyright, where public disclosure is necessary for interoperability? Patents worked really well to create an interoperable world of content and players from MPEG-1 to today. Or the software algorithms sitting in your WiFi chipset. Someone has to pay for all this R&D, but for the technology to be interoperable it has to be disclosed.

Putting the technology in a pool and charging implementors for patent licenses is a good way to do that. In my opinion, it’s better than depending on Google to bankroll all these things with their advertising money printing machine (VP9).

I don't think MPEG is a good argument for patents; I don't think we should be patenting protocols. The idea that you can't interop without a patent license seems like complete bullshit.

Interested parties will still do development on these technologies, even without patent rights. Everyone still needs to sell the next version of their product.

And honestly, I would trade protocol protections to get rid of all the bullshit patents which outnumber anything meaningful at least 1000:1.

MPEG isn’t just a bit stream format. The magic is the encoding techniques. That is very hard to protect without patents, because the techniques are exposed in the bit stream formats. And ideally you want to have a reference implementation with source code so you can get lots of high quality interoperable implementations. Same thing with the algorithms underlying WiFi and LTE. Trade secrets don’t help because you can’t have interoperability without making it public. Copyright doesn’t help. The software is the easy part. It’s capital intensive to develop the algorithms.

Interested parties would develop these technologies, but they wouldn’t make them open. Where are the alternative models for developing something like MPEG? There is the Google/VP9 model, which is to bankroll the R&D it with advertising dollars. Then there is the BBC/Dirac model with public funding paid for by a mandatory tax. To me those models are worse and less sustainable.

IMO industry leaders have pressure to reinvest their profits in R&D and put it in their new products, regardless of whether they can get patent protection for them or not.

I'm not an expert in codecs or wireless protocols, but afaik most wireless telephony standards are practically trade secrets, requiring payment of tens of thousands of dollars to even read the spec.

And I can't say I'm really a fan of the situation where people are forced to buy Qualcomm chips because they hold key LTE patents which they're managed to get people worldwide to agree to use.

But one thing I do know about standards is that they often trademark their name, and then require certification and payment for use; it should be relatively straight forward to setup industry bodies like this where you cannot use the trademark Bluetooth without paying into the body, which pays for R&D.

Sure, you have to get creative and you can't just sneak something you patented into a standard and land in a billion dollar monopoly, but frankly, I'm not really crying for Qualcomm and co.

[EDIT]: By way of analogy: we don't let newspapers patent facts, even if they are the first to report them. This makes it hard for news orgs to protect their content, and while it was easier for news orgs pre-internet, Reuters, AP, NYT, BuzzFeed are all doing well. There's no need to prop up every industry.

> IMO industry leaders have pressure to reinvest their profits in R&D and put it in their new products, regardless of whether they can get patent protection for them or not.

They do. What they don’t have is any incentive to open up that R&D for competitors to use unless they have a way of monetizing it. Selling a patent license is better than many of the alternative such monetization models (e.g. Google’s model of developing Android for free so it can slurp down all the data pushed through Android phones).

As to standards essential patents—-the whole point is that you don’t have to buy the product from the same company that did the original R&D. You can buy someone else’s chip, and the original technology developer still gets compensated with a royalty. This is a system that works really well in a whole host of areas everyone depends on. MPEG, WiFi, LTE, Bluetooth, DDRn, PCI-E, all of these ecosystems are mediated by patents. Companies spend a lot of money developing the technology, then implemented who generally don’t have the expertise to develop this sort of technology themselves pay licenses to implement the standards essential patents. It works and it’s way better than the alternatives.

> IMO industry leaders have pressure to reinvest their profits in R&D and put it in their new products, regardless of whether they can get patent protection for them or not.

This has obvious free-rider problems for things like new video streaming protocols. Why contribute to the development of next generation codecs, for example, if you can just copy the most successful solution of your competitors and get 80% of the benefit for none of the cost?

(I say 80% because the competitor's solution will presumably not be totally optimized for your business needs)

Patents are effectively a mandatory tax, just mostly paid to private companies.

Yes, it’s a tax paid by the people who profit by making compatible implementations of technology to the people who spend money developing the technology. It’s an honest bi-lateral exchange of money for property rights.

I'm curious as to why you feel copyright is too weak. It's pretty effective at preventing competitors from ripping you off and although customers are often a different story it already has hit the limits of enforcement ability on that front.

Copyright can't protect ideas, only specific expressions of them. If my code contains a brilliant and truly novel idea for efficient data storage, you're free to write your own code implementing that idea without violating my coyright.

Yes, and that's kind of the whole point - the world is better off if everyone is able to write their own code implementing better, more efficient data storage without worrying if someone else might have done that before them. It's important to note that patent laws are created not for the benefit of creators but for the benefit of the general public - the public gives creators "temporary monopolies" only because and only to the extent that these protections are expected to provide appropriate incentives to the creators that benefit everyone else in the long run. The question is about which particular cases warrant the state to enforce an artificial monopoly, a restriction on what technology others (including other creators) are able to use in their business. If a particular protection gives no benefit to the wider community, that protection shouldn't exist.

Patents solve a problem where inventors might reasonably choose not to distribute improved products widely because they're unable to ship them without revealing how they work. We want them to sell these inventions to wide markets without delay, so issuing time-restricted patents is useful to achieve that goal. As other posters stated, shrinkwrap software has the same issue (so patents might be useful for this scenario) but SAAS does not; you're going to use the brilliant and truly novel idea for efficient data storage anyway, and if other people would be restricted from doing so then that makes the society to use inferior technology with no good reason.

However, there is no incentive for entrepreneurs to take risks in your world. The existing patent system, as set forth in the Constitution, Article 1, Section 8, provides that incentive.

The world of reality?

Conversely, if I write some bubble sort+ code at work I can’t make use of it at home and have to rewrite it from scratch because employers own all the code we write, even when it’s not even remotely in the scope of the business and is just groundwork bordering on boilerplate.

+ hopelessly contrived just to make a point.

I’d like to see something like patents but with an affirmative defense if you prove independent invention.

> There are 3 forms of IP protection: copyright, patents, and trademarks

Technically, trade-secrecy is in that list too

4 forms. Trade secrets are intellectual property generally managed by state law.

Stallman was right.

Why Patents Are Bad for Software, 1991:


as extreme as he is, he usually is right when it comes to IP, privacy, etc.

Patents used to keep inventors from taking their secrets into their graves, but now it seems they only support some kind of cold war between big players that can afford to produce lots of bogus patents possibly usable for retaliation. Also, and this is a nice side effect, everybody who cannot afford to waste money on this is kept out of the game.

No. Trade secrets can be taken to your grave.

Patents are in the US Constitution, Article 1, Section 8:

  The Congress shall have power ... To promote the Progress
  of Science and useful Arts, by securing for limited Times
  to Authors and Inventors the exclusive Right to their
  respective Writings and Discoveries.
Rights to their Writings means copyright. Rights to their Discoveries means patent. Promote the Progress means incentivize.

Limited time is the critical point here. The way things are now, the times applicable are way too long. The other factor is that the way copyright and patents are implemented in law means that they are way too broad, way too broad.

In relation to patents, most patents issued are not justified. They do not promote progress in any form. Historically, progress based on a patent occurs after the patent expires. If you look at many of the patents issued, one will see that they are either obvious to someone skilled in the applicable arts or are a failure obvious to one skilled in the applicable arts.

In regards to copyrights, its purpose is to allow a short period of time for an author to make money if he/she can convince the paying community to do so, thereafter it is in the public domain for others to use as a basis for new works. The way it is today, the authors get little or nothing and the publishers (of whatever kind) get to control for extended periods of time (or the descendants who did nothing to create the work in the first place).

This mindset of sitting on your laurels is now progressing into other areas. Yet for the bulk of us, one we have created something and sell it that is the end of it for us.

Trade secret law ends up leading ot serious industrial espionage and often with the backing of the various agencies of ones government (when doing so is against foreign companies).

Today, little progress is being made (in relative terms) by copyright, patents and trade mark law. These areas are about slowing and controlling the dissemination of knowledge for the betterment of society.

The specific part of the US constitution means that Congress can make laws that abolish all copyright and patents as well as locking them down. This is a aspect that is rarely, if at all, acknowledged by those who strongly support copyright and patents.

I have had discussions with a supposed patent holder and challenged him to actually supply all the patent numbers of his supposed creative work. He wouldn't do so and in not doing so, completely diminished all of his arguments because his arguments depended on us taking his word for how creative and important his patents were.

Limited time is the critical point here. First to file and 20 years is the world standard.

They do not promote progress in any form. Great, then the patentee has just wasted $10K on a pointless patent. Problem solved. If your patent is nothing you have nothing.

Congress can make laws that abolish all copyright and patents Yeah, Congress could do that. It would take a sharknado of Trumps to be that stupid. Could happen.

I've read a metric shit ton of patents and I have no idea what all the patent numbers of his supposed creative work means.

First to file - this means that they are happy to allow patents where they are obvious. This undercuts any actual justification for the patent. Hence, making them not worthy of being patented.

If a patent doesn't promote progress then why allow it?

Patents are issued with a patent number, hence I can't see what your problem is in understanding what this means?

I also blame USPTO execution, IMO USPTO should not be shielded from lawsuits for assigning patents on obviously BS innovation like 'rectangle with rounded edges' etc. if it does not even meets the common sense a decade ago then there should be some liability of enforceability on uspto.

on a general note I feel like everything in US is translating into a money fight. from congress to law to carpool lanes, there seems to be only one goal left that matters in life, money. apologies for tangential rant!

On a conceptual level, USPTO is operating on the same procedures that was initial created more than 200 years ago. Practically every other form of government administrative operations has change, but the patent process has not.

Following 19th century government standard, USPTO is only really responsible to take in a patent request and check its own records to see if a patented idea is new or not, and then allow the skill government clerk who took the request to make a judgment based binary decision. The assumption in 19th century government process is that anything not in the records are not something for which the government can be held responsible to make a judgment on. Anything beyond this is assumed to be the courts and juries responsibility.

And in the past they did also have a few safeguards. A working model had to be added in order to make sure that function and copy of the idea is guarantied. The scope of patentable ideas was also narrowed down to a few areas for which a skilled government employee with a massive record could make a relative good guess if something was novel or not. Both was removed about 50 years ago, and a explosion of "new" patents has been requested ever since.

> And in the past they did also have a few safeguards. … Both was removed about 50 years ago, and a explosion of "new" patents has been requested ever since.

Patent model requirement was abolished in 1880, not 50 years ago:


(I don't know when the "scope of patentable ideas" was widened.)

That happened with the Patents Act 1953, where the phrase "or process" was added by Congress.

According a legal law professor this was also when they removed the requirement for a working model, but I suspect that this was actually the date when the process to deposit a model was removed. There is plenty of models being sent after 1880 to USPTO (according to museums who write about their collections), so clearly it didn't all stop 1880. Also according to internal policy documents from inside USPTO that dates to early 1960, "the only thing you need to bring us a working model of is anything you claim that reverses entropy", which again highlight a change in attitude during that time in history.

That said, you are right that the official date when the requirement ended was 1880.

Lawsuits for everything is not a sane solution.

The USPTO follows the law as closely as they can (and your "rectangle with rounded edges is a design patent, not a utility one").

They have a 2400+ page manual they try to keep up to date with the current law, covering how patent applications are examined.: https://www.uspto.gov/web/offices/pac/mpep/index.html

They also accept comments on it here: https://uspto-mpep.ideascale.com/a/index

People have turned to lawsuits because they are completely and totally ineffective at getting political change.

The faster they get better at that instead of "suing", the better off we'll be.

In the meanwhile, you are quite literally blaming the people who are doing pretty much the best they can. They have very short periods of time to get their work done, etc.

There are certainly some problems here, but your problems are legislative, not executive.

I agree lawsuits are not sane solution but as you hinted they are the only tools for 'non consensus driven' change at a personal/corp level. Pretty much everything else I think about involves congress which requires influencing elections which requires large amounts of money (esp for numerous HR seats as opposed to presidential).

BTW govt agency accepting comments might as well direct them to trash bin directly. you can see that from recent FCC net neutrality debacle.

>In the meanwhile, you are quite literally blaming the people who are doing pretty much the best they can. They have very short periods of time to get their work done, etc.

what I am blaming them for is not doing their job properly and which very evidently causes everything to be deferred to courts to fight it out, which needs lots of money and introduces uncertain subjectivity (east texas district for instance). guess what that translate to for individual companies, more defensive patents.

I hate to say it but I agree with stallman to a degree on this.

"I agree lawsuits are not sane solution but as you hinted they are the only tools for 'non consensus driven' change at a personal/corp level. Pretty much everything else I think about involves congress which requires influencing elections which requires large amounts of money (esp for numerous HR seats as opposed to presidential). " TL; DR - i don't like the governance system my country built :) Sorry, but either change it, or live with it. Making an end run around it is bad.

"BTW govt agency accepting comments might as well direct them to trash bin directly. you can see that from recent FCC net neutrality debacle. " This is false for many agencies, and is definitely not true of the USPTO.

"what I am blaming them for is not doing their job properly" They very very much are.

"and which very evidently causes everything to be deferred to courts to fight it out"

This doesn't even make any sense.

People fight it out in court because there is a lot of money involved. IT doesn't matter if the PTO says it's valid or not, people fight either way.

What you've written seems like a very angry and uninformed rant.

I would urge you to actually go and study the history and details here, instead of just making a bunch of assumptions and asserting non-factual things as fact.

> on a general note I feel like everything in US is translating into a money fight. from congress to law to carpool lanes, there seems to be only one goal left that matters in life, money.

It it could be seen as a return to the "gilded age"...

My take is that there's an undercurrent of unease that everything is about to go to shit and "I want to get my pile of cash before it happens."

Of course, since all money is just an electronic agreement now, anybody not hoarding gold is gonna be SOL anyway. So it's a bit short-sighted.

Gold... if shit hits the fan with today's population densities, the only currencies that will matter will be food, fuel, drugs (alcohol & tobacco) and ammunition.

and maybe cryptocurrencies if internet survives in any form.

why the downvotes? the distributed, permissionless transactions seems to be a design goal for cryptocurrencies. if so they are perfect for dystopia given some mass communication mean exists, even something like ham radio will do.

What makes you think they'd be more useful than gold in such a situation? In much the same way the have no direct use, and their use requires wasting scarce resources (energy, bandwidth) on performing transactions.

for the scenarios you are thinking about you are better off holding lead instead of gold. you can always acquire gold if you have lead.

jokes aside IMO there is a lot of very short term thinking even for the richest because majority of wealth today sits in stock market and real estate and they depend very strongly on civilization status quo continuing. the root cause IMHO is dysfunction at the congressional level which is basically our prefrontal cortex as nation.

I would think gold wouldn't be worth anything in the modern world if civilization actually collapsed.

You would need a semi-robust trading market as well as an upper class who can afford to not spend resources on survival to trade gold for necessities, wouldn't you?

Probably. But gold is more useful than electronic money. Gold has inherent value because it's a metal that's easy to hammer into useful objects that won't corrode and it's pretty. (Although it's too soft for things like knives and most other tools.)

I always loved the end-run around the limits on patents: just say it is "on a computer" and suddenly it is not a patent on math. Never mind what sort of computer is covered.

The "on a computer" trick doesn't work post 2014. Alice v. CLS Bank killed it. Business method + a computer now gets you into an art unit with a sub 5% allowance rate. http://www.bilskiblog.com/blog/2016/06/two-years-after-alice...

So what is the new trick? Software patents are still being granted and the nature of software (as a kind of math) has not fundamentally changed.

Why do you think software is more "a kind of math" than e.g. mechanical engineering?

Other than convenience, does it make a difference if you evaluate an algorithm by hand (e.g. with a pencil and paper) versus using a computer? I assume you have at least used the addition, subtraction, multiplication, and division algorithms on paper at some point in your life -- the results are the same (up to human error) as they would be if you wrote a program that did the same operations. It does not matter how you compute something, all that matters is what you compute. Writing an algorithm on paper is just as good as writing it using Emacs in some programming language.

There is also the question of representations. How you represent an algorithm is not terribly important, and programmers routinely convert one representation of an algorithm to another (e.g. with a compiler). One representation available for any algorithm is a lambda expression, and there is not much room for arguing about whether or not lambda calculus is a field of math (it absolutely is, especially when you consider typed lambda calculus).

For mechanical engineering, simulating something on paper is not the same as building it, and the particular materials, shapes, etc. that you use in a mechanical system make a big difference. There is math involved in ME, but the math is not the final product. Yes, some ME work today is purely algorithmic, but that is just overloading the term "mechanical engineering" to cover a particular subset of CS that is of interest in ME.

Rewording that, other than convenience, does it make a difference if you manufacture a widget by hand or with a machine?

Utility classes. Utility patents, issued under 35 U.S.C. 101, protect any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.

Software is a process. Now there are judicial exceptions:

laws of nature, natural phenomena, and abstract ideas

The business method patents getting nuked by Alice [1] are abstract ideas tied to a computer with a shoestring. The software patents getting issued by Enfish [2] "improve the functioning of the computer itself".

Stallman, as always, is too simplistic.

[1] https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...

[2] https://en.wikipedia.org/wiki/Enfish,_LLC_v._Microsoft_Corp.

"Software is a process"

Except that the "process" is poorly defined, as the representation of the software is not actually relevant. Changing the compiler flags will change the process; certainly changing the compiler will. Writing the same algorithm in a different language will change the process, in some cases dramatically (e.g. an imperative language versus a declarative language). Evaluating an algorithm by hand will involve a very different process than using a mechanical computer, which will be different from using an electronic computer.

An algorithm is an abstract idea, and it can be expressed or evaluated in infinitely many ways (this is well known). An algorithm can "emerge" from a system unintentionally, as an abstract consequence of a system (template metaprogramming in C++ is an example -- it was an unintended consequence of how templates are processed).

If software represents a "process," what exactly is "processed?" Different representations of an algorithm can have totally different input/output encodings, intermediate states, etc. It is the same algorithm regardless, certainly for the purposes of a software patent (otherwise the patent would be pointlessly narrow and very easy to evade).

Basically, the only meaningful way to patent software is to have a patent that covers infinitely many "processes," without regard to the specific intermediate steps of the "process" or even to the particular inputs and outputs (just their abstract "meaning"). In other words, what is patented is the possibility of some particular computation -- which is exactly how software patents play out in practice. That is an abstract, mathematical idea, "tied" to "a computer" that is completely hypothetical (what CPU architecture? what hardware configuration? etc.).

> If software represents a "process," what exactly is "processed?"

Class 719:

A coherent sequence of steps undertaken by a program to manipulate data such as an internal or external data-transfer operation, handling an interrupt, or evaluation of a function.


> Basically, the only meaningful way to patent software is to have a patent that covers infinitely many "processes," ...

No. There are the judicial exceptions: law of nature, natural phenomenon, or abstract idea. Really, the software patents you don't like are covered by the abstract ideas exception.

Basically, I don't think I'll change your mind and that's ok. But I do want to know how you expect to incentivize software developers to take risks without protecting their work?

"A coherent sequence of steps undertaken by a program to manipulate data such as an internal or external data-transfer operation, handling an interrupt, or evaluation of a function."

Except that the sequence itself is poorly defined, as it depends on the particular language used, the particular compiler and compiler flags used, how the software is run, etc. This is true for all software; so if you want to patent software you would need to specify all the above, which would be almost pedantically narrow.

"Really, the software patents you don't like are covered by the abstract ideas exception."

What I stated is true for all software, so I guess I do not really understand what other software patents you are referring to. At most all I can see is a patent on some larger machine that happens to use some software e.g. in a microcontroller, but that does not seem like a "software patent" as most people understand the term.

"I do want to know how you expect to incentivize software developers to take risks without protecting their work?"

First of all, patents are one of the three ways developers typically "protect" their work. Copyrights and trade secrets are a much better fit for this domain.

Second, I cannot think of any software innovations that would not have happened without software patents. In almost all cases the patents seem to just be after thoughts that some corporation or university insists on, without having much relevance to the willingness of innovators to try new things. Patents are completely irrelevant to open source software, and major breakthroughs tend to be announced in academic venues long before patents are granted.

Finally, in almost all cases I personally deal with (as a cryptographer), patents only slow the pace of innovation and are actively harmful to our ability to actually deploy innovations. Just the other day I found out that a technique I have seen used in dozens of research systems was patented, and therefore too risky to use in any real-world system -- the latest in a long line of such patents. Put simply, software patents hamper our ability to innovate far more than encourage it; software patents have always been a drag on crypto, going all the way back to the early patents on PKE and RSA.

I think Diffie Hellman Merkle key exchange was a brilliant idea and an awesome patent. I understand that the Brits had discovered it in secret but didn't have the compute power at the time. That actually didn't invalidate it; the interplay between trade secret and patents is not one sided either way.

Diffie Hellman Merkle was assigned to and prosecuted by Stanford as was Larry Page's PageRank patent. I do not think Stanford or other universities (non-practicing entitites really) would develop so much IP if they didn't get something substantial back.

Yes, it is the nature of the limited monopoly of patents to both impede and incent. It is the rare patent, Diffie Hellman Merkle key exchange was rare, that is truly amazingly novel. Most patents are incremental and society benefits from the increment.

Now you need to have "significantly more" than being implemented with a computer. Opinions differ over exactly what this means.

Significantly more was Thomas writing in a rare Supreme Court patent decision. The Supremes aren't going to draw this line certainly not in a single case. The DC Court of Appeals hears 100s of patent cases and they'll draw that line with case law.

Not all software is about just "a business method".

E.g., compilers, differential equation solvers, linear program solvers, graphics rendering routines, ...

Some software is more ingenious than a lot of "mechanical" patents.

(By the way, this raises the question why e.g. mechanical engineers can make money using patents, while software engineers could not.)

Patents are great in a vacuum, but long term in a system of capitalism, they too tend to coalesce under ownership of the wealthiest.

Edit: grammar

Edit 2: word usage

For future reference: coalesce does not work this way as a word.

Good catch, fixed.

Only with first-to-the-patent-office, a recent (but devastating) change in the law in N.A.

Even without first to office, the wealthy corps accumulate patents from failed & small corps as time goes on, which is why the OP use the word coalesce.

That is fine. Countries where there are no software patents (for example: Russia or China) will become the leaders in AI research.

China has software patents. They even have business method patents.


One of the problems is that patent applicants in the U.S. have no obligation to submit a competent prior-art search; it's the job of the patent examiner to do a prior-art search. Every time the USPTO issues a patent, in effect it's making national economic policy, yet someone seeking a patent need only disclose whatever prior art of which he or she (and/or the patent attorney) happens to be aware. That's like saying that a Ph.D student doesn't need to do a literature search for her dissertation because some junior faculty member will do the search — and then if that junior faculty member judges the dissertation to be acceptable (possibly in consultation with a senior faculty member), then the student gets her degree. The flaws in that arrangement should be obvious, and yet that's how U.S. patents are granted.

This article mentions a stupid patent, but it does not support its claim that stupid patents are dragging down AI and machine learning. To make that argument, you would have to show that stupid machine learning patents are being litigated.

A patent can stifle work without being litigated. See the recent kerfuffle with react and graphQL. The simple matter of a patent that might exist was enough for people to change tooling.

Patents for AI might very well cool business R&D into AI.

It doesn't work that way in this case. No ML researcher goes out of their way to look for ML patents because the penalty for knowingly infringing is much worse than the penalty for accidentally infringing. If nobody knows these patents exist, and nobody is litigating them, then they can't be "dragging down" research.

As a remainder, if you find EFF's work valuable, you can donate at https://supporters.eff.org/donate

Funny, there must be at least 10 years of "prior art" on any kind of machine learning patent application these days. Guess the patent officers are as good as they have ever been.

The legal meaning of "prior art" has been changed by recent amazing legal decisions. It means "awfully damn famous" now.

interesting. any source you could share?

Not dragging down entire AI and machine learning, but keeping Americans AI powess down.

"Stupid patents" is a pleonasm.

Never have I seen a compelling argument for patents.

We certainly don't have proof, but there's a helluva historical correlation between patent enforcement (or existence) and countries with strong economic growth, particularly in technology sectors. That has to be referred to as evidence - since evidence which cannot be misleading, i.e. "incontrovertible evidence" is actually proof.

Moreover, histories of technology often show simultaneous invention, and in such cases, the obscure and unsuccessful efforts very strongly tend to appear in areas where patent law is not efficient or respected, and therefore investment for development of inventions is lacking. Without his patent, James Watt could not have and would not have (finally, after a long effort) found a sufficiently rich partner who could fund the development and production of his new kind of steam engine.

Note too that even if patents weren't globally efficient (which I strongly believe they are), they nonetheless attract inventors to your country and so are locally efficient (a prisoner's dilemma that only coordination through treaties would defeat.)

This doesn't mean that present patent law is ideal, or that the historical context hasn't at least partly vanished, however: very complex technologies (which we're now awash in) create situations in which it may be more valuable to cease to produce smartphones and instead use patents to hold a gun to the head of others and merely extract rent from those still producing them (sneezeMicrosoft.) Since you aren't producing phones, others can't retaliate by refusing to license their patents - you no longer need their patents. When more than one (or perhaps a thousand) IP holders want to extract rent from the same item, obviously this can introduce great inefficiencies. Few patents are truly essential (outside FRAND standards, a different situation) but many are costly to get around. One way or another, sooner or later, we may have to deal with this situation. I wish I knew just how.

Correlation does not imply causation.

A patent in a strong economy is worth more than a patent in a weak one, therefore it seems very likely they're pursued more, and probably also more lobbied-for. It also seems very likely that the same invention will grow more quickly in a strong economy than a weak one.

I certainly don't disagree that patents profit the inventor and attract investment, but to call that investment greater than the sum otherwise invested in competitors plainly denies that capitalism works.

Here's a thought: keep patents, but force a public license for a reasonable fee. It's the withholding of patents that walls-off progress, not reasonable rent-seeking. So keep the money, keep the incentive, but lose the ability to prevent competition.

On a moral note: do you really not think it twisted to punish somebody for building on the shoulders of who came before him? Is there anything more human than the ability to learn from and build on the work of your predecessors? I absolutely refuse to feel guilty for learning from what I see, and therefore to support the punishment of anybody else for it.

Funny, i would have figured it was the other way round.

The nations that ignore patents, and perhaps also copyright, are the ones that bloom the fastest.

Best i recall the steam engine saw rapid improvements only after the Watts patent(s) ran out.

And in a different example, Smith and Wesson sat on refinements for the Colt revolver for 20 years.

Developing economies with outside technologies they can copy should do better by ignoring patents, while economies at the bleeding edge should encourage more invention and disclosure through having them respected.

Didn't the US ignore patents when it was England that was the superpower? I wasn't there, but:


If you can get all the advantages of well-documented and reduced-to-practice inventions disclosed publicly without much disadvantage from your own citizens failing to disclose their own inventions, then ignoring patents seems like a great idea.

This isn't to say that I think the US patent system actually works, I think it's all a terrifically counterproductive mess 95% of the time. But there's historical evidence that whether your country benefits from patent adherence depends on how advanced your economy is relative to others.

Once China starts generating lots of good new inventions, now that they're bleeding-edge-adjacent, they're going to see increasing value in enforcing IP rights. It will protect their industry from competing with infringing imports from other countries with lower manufacturing costs, same as here, which is a bigger deal as their domestic consumption increases.

Actually, perhaps worth noting that the parent comment is talking about a correlation between robust economic growth and patent enforcement.

The causality could be reversed -- once economic growth is large enough that the country is at the bleeding edge of technology, then it cares about enforcing patents because it's lobbied to by its companies.

Nations have opted to ignore IP. For example, Sweden didn't respect copyright in the nineteeth century, so anybody could print Ibsen's plays. Or print them with different endings - including a quite popular version of "A Doll's House" with a happy ending where she returns and apologizes instead of leaving her husband! Eventually, Sweden decided it was losing out economically (Ibsen had moved to Italy or something by then) and decided IP was a good thing.

... in the modern world.

As they were first conceived I can understand. But, like in all things, entropy has been at play.

Remember that time the patent system saved us from Skynet!

3d printers and fidget spinners.

This can be broadened: stupid patents are dragging down the US economy.

And maybe human progress in general.

How do you protect and encourage innovation without patents?

How are software patents protecting or encouraging innovation? I have seen patents cover algorithms that had not been proved feasible at the time the patent was granted. I have seen patents granted on academic research that do not recognizably cover the same invention. Most programmers have no idea whether or not they are infringing on patents.

Patents are supposed to come with limitations. For example, nobody is supposed to receive a patent on math. In my own field (crypto) math patents are the norm -- I have seen countless patents on results in algebraic number theory (elliptic curves, pairings, lattices, etc.).

The software industry has demonstrated an ability to innovate without patents, both in open source and proprietary software. Open source is obvious. Proprietary software is monetized with copyrights and trade secrets; patents play a minor role at most, and legitimate software companies just amass defensive portfolios to protect themselves from patent trolls. The only people making big bucks on software patents are lawyers who represent a drain on our industry.

In software, by doing nothing. Merely not punishing for innovation (via submarine patents) is enough. Other incentives and protections seem to be enough for the vast majority of software, which is not patented. To give a specific example, we'd be 20 years ahead in video codecs if they weren't a research minefield and innovations of open-source community weren't tainted by patents (in this area there are lots of people keen to innovate, but they have to bend backwards to make something good strictly out of 20+-year-old algorithms, because anything not obviously outdated is undeployable due to litigation risk).

For other areas, like drug research, I think publicly-funded research is a great solution. When new drugs are invented, they should be produced as cheaply as possible, repaying investment by saving as many people as possible.

> For other areas, like drug research, I think publicly-funded research is a great solution.

Tallying up most of the federal funding in the U.S. for R&D of any kind gives you a number ~ $130 billion per year for the last few years[1]. The top fifteen pharma companies have R&D budgets that look to add up to around $80 billion per year[2]. What countries do you expect to be willing to match that spend?

[1]: https://www.nsf.gov/statistics/2016/nsf16311/ [2]: https://endpts.com/top-pharma-biotech-research-development-b...

And note a huge chunk of government R&D is defense. HHS/NIH is like $30B a year, which makes the $80B comparison even more compelling.

The weird thing being that some of the biggest leaps of technological development have been during wartime, because then budget is no issue.

The early cultivation of penicillin involved walls of cotton balls acting as growth environment. Laborious, ineffective and expensive, but maintained so that the army hospitals were provided a reliable supply.

The question is do patents encourage innovation? It seem that they do not -- they in fact encourage rent seeking and slow down innovation.

So Halliburton could have funded the very long expensive development of Xerox machines... how?

Patents only encourage innovation in areas where R&D is expensive and/or time consuming. The pharmaceutical industry is a good example. Software on the other hand has far less R&D risk, and the cost of carrying out that R&D is far smaller. What ends up happening is that there's a race to patent basic processes that require very little R&D, but have wide-ranging legal implications. This stifles innovation.

In short, patents aren't beneficial for all industries.

False logic. It's not like the absence of patents has prevented innovation in the course of History. Imagine how poor the world would have been if a patent on "fire" was ever granted to some kind of proto-human organization.

Twenty years and it’s done. No big deal. But the patent on teepee fires, log cabin fires, elm fires, oak fires, pine fires that start faster, maple fires, fire for cooking chicken, fire for cooking turkey, fire for smoking meats, fire for signaling, fire for signaling with morse code, fire for warmth, Uber but for fire, charcoal, fire for witches, and firing employees—those would drown us.

Be wayyy more strict about what can be submitted. Limit patent claims to one page, authored by the main inventor (not her lawyer), reject wayy more submissions, allow the public to identify prior art on pending patents, etc.

>Limit patent claims to one page

Wouldn't that force people to be vague? More pages would mean more specificity, wouldn't it? A patent can currently only cover one thing anyway, and even if this wasn't the case then people would just submit many one-page patents instead of a 100-page collection of 100 smaller patents.

>not her lawyer

Can I ask why you specified her? I am all for gender equality and am currently trying to get into the habit of using "them" and "theirs" instead of "him" and "his" but switching to the opposite gender doesn't seem to solve anything. Plus it reads oddly because the male is gender-neutral in English, swapping it with a word that is not gender-neutral is confusing.

As for the former portion, I think the goal here is to force the applicant to be as succinct as possible to make the review process faster. I think you're right in that it would result in a larger number of patents, and there are certainly patents that couldn't fit on a single page without omitting a valuable prelude. For example, an algorithm patent may require some initial exposition to delineate the novelty of the idea.

The latter portion of your comment is not necessary and does not contribute to the discussion at hand. There are many possible reasons for using "her" instead of "him" and the majority of them are valid.

Actually, "its" would be gender-neutral in English, but using "its" to describe a person is considered very rude (because people actually have genders, so "its" implies that you are talking about something rather than someone).

Something to consider: Would you have had the same reaction to this sentence: "...a nurse (not her lawyer)...?" Many people would find that to be less "forced" because they are already comfortable assuming that nurses are women. In other words, the fact that using one pronoun stands out more than using another is evidence of a bias people carry (not necessarily you -- maybe you would have been equally curious if it was, "not his lawyer"; that would make you a very unique person ;) ).

I generally go for 'they' to be neutral, but it doesn't always feel right.

I believe that is because English grammar is in a transitional stage right now as we lose declensions for our pronouns. In a century or two, "they" might be the proper genderless pronoun, and we may not even have gendered pronouns at that point -- but that is not the English of today. So while using "they" as a genderless singular pronoun might sometimes work it still feels a bit awkward.

Personally, I try to alternate between "he" and "she" when I am talking about hypothetical people, so I am never pushing the bounds of English grammar (at least with pronouns).

'He' and 'she' switching confuses me, and while in some cases I do feel that it's a result of actual ambiguity, a big part of it might just be unfamiliarity.

Either way, even in Dutch I find myself to be a bit more sensitive to these things and it's not something I'd argue against. Although in Dutch there's not even a 'they' we can use, practically.

The key is to keep the price of filing the same. So when you have a $20k budget for patenting, you will still only file the same number of patents. Then the one-pager will have to be succinct and to the point. If it doesn't convince the examiner that it's novel, the patent gets rejected and the application fees are wasted. Most patents today are just legalese with a zillion combinations of embodiments of the main claims. Just keep it to the claims and be specific.

“Them” and “theirs” are plural. Talk about confusing.

I don’t get why using “one” isn’t more common. It’s gramatically correct and is as gender neutral as it gets.

It's pretty common in Britain, and yes it's valid grammatically correct English but it's used to refer to "oneself" so wouldn't work when referring to others very well.

Secrecy until it gets leaked/reverse engineered serves the same function to a more moderate degree.

which isn’t necessarily a bad thing for society as a whole: https://en.m.wikipedia.org/wiki/IBM_PC_compatible

Profits. For being better, not first.

Which can be mirrored, the us economy is dragging down the world

The anti-patent hate group at the EFF is at it again. If they think a patent is "obvious", let them file a post-grant objection.

Would you be so kind as to disclose any special interest that you have in the matter of patents?

Your comment was fairly strong so I'm curious if you have much skin in the game.

I don't make any secret of it. See my web site, "www.animats.com". Although it's rather dated at this point.

So if we grant you're one of the patent good guys - are you prepared to defend the whole show? What do you think of the overall quality of patents granted - when compared to the cost of defending against them? Does it seem like a reasonable and proportionate system to you?

Who is "them"? And who will pay the enormous lawsuit bills for the thousands of cases? And are there enough lawyers in the world to fight every obvious patent? Enlighten us.

> Just as the US Patent Office problematically gave out patents in the past for computers doing simple things... the office seems prepared to give out patents on "using machine learning in obvious and expected ways." Companies like Google and Microsoft are seeking to acquire, and in some cases have acquired, patents on "fundamental machine-learning techniques," Nazer writes.

I find myself in a weird situation. Patents are a drag, and they're misused and wasteful, etc. etc. But it feels like the author here isn't acknowledging or appreciating what patents are intended for or good for.

We can't say patents are bad because there are obvious uses of a technology. Patents protect the people who develop the technology, not the competition who wants to use it for free after it works.

The issuing of a patent doesn't depend on how obvious the use is, it depends on how obvious the actual solution is. And deep convolutional neural nets trained using backprop or adversarial networks, these things are not obvious. They are even counter-obvious, for 30 years people knew about them and claimed they wouldn't work.

Again, I know and agree that bad/stupid patents are being issued, and that trolls who don't develop tech are siphoning money, and all that.

But when someone invents something that works, the patent system is supposed to apply a drag force on everyone else using it, that's it's intended function. And sometimes, maybe not that often these days, but sometimes it actually works as intended and deserving people get to see their work come to financial fruition.

I used to feel that way. Unfortunately we've reached the point where patents have so damaged and corrupted our industry that none of us can write any software free of patents. If someone wants to annihilate you with a patent suit, theoretically they can. Unless you have a patent portfolio.

They are the ultimate anti-individual-programmer. Which is another way of saying they're a threat to hacker culture.

You can argue that hacker culture had its day in the sun, and that the world should move forward. But it's important to be clear to yourself that the culture that built the internet and so many of the tools we now enjoy for free is being thrown under the bus.

E.g. see Mike Pall's statement on LuaJIT: http://lua-users.org/lists/lua-l/2009-11/msg00089.html

I cannot guarantee LuaJIT to be free of third-party IP however. In fact nobody can. Writing software has become a minefield and any moderately complex piece of software is probably (unknowingly to the author) encumbered by hundreds of dubious patents. This especially applies to compilers.

Are you sure you want to live in a world where people can't legally write and release LuaJIT for free without its users facing legal ramifications? Same deal with machine learning. What will the LuaJIT of machine learning be?

> E.g. see Mike Pall's statement on LuaJIT

I am playing devil's advocate here, but Mike's statement doesn't amount to evidence. I understand he's afraid, and he's saying he thinks it's now too onerous to do due diligence. And I agree -- he's right. OTOH, it's not normal to guarantee that a piece of software is free from patent liability. Nobody could even if they wanted to, and even if the patent system was healthy. Company lawyers have told me not to look for patent infringement when I write code, they say just write algorithms that you believe nobody else invented, and "they" (competition) will let us know via the legal system if they see a claim.

> Are you sure you want to live in a world where people can't legally write and release LuaJIT for free without its users facing legal ramifications? Same deal with machine learning. What will the LuaJIT of machine learning be?

I don't want to live in that world. But is there not a flip side from the inventors point of view? If I invented something very useful, and very non-obvious, and say just for purposes of example, that Mike Pall put that idea in LuaJIT, released it for free, and my commercial competition then downloaded LuaJIT and put me out of business, I would probably be some combination of sad, mad, and poor.

I don't want to live in that world. But is there not a flip side from the inventors point of view?

I would 100% agree with you if the resources to litigate were distributed evenly. Unfortunately they're not.

If you were sad, mad, and poor, you wouldn't be able to anything, because "poor" would disqualify you. No one would even represent you pro bono, probably.

The only people that meaningfully benefit from patents are corporations. If you don't buy that argument, let me know, because it's pretty important that I persuade you. :) Of course, that tends to be the least effective way to persuade someone, but still.

See Stallman's writing posted upthread (http://groups.csail.mit.edu/mac/projects/lpf/Links/prep.ai.m...):

In September 1990, users of the popular XyWrite word processing program got a disturbing letter in the mail from XyQuest, Inc., the program's publisher:

"In June of 1987, we introduced an automatic correction and abbreviation expansion feature in XyWrite III Plus. Unbeknownst to us, a patent application for a related capability had been filed in 1984 and was subsequently granted in 1988. The company holding the patent contacted us in late 1989 and apprised us of the existence of their patent.

We have decided to modify XyWrite III Plus so that it cannot be construed as infringing. The newest version of XyWrite III Plus (3.56) incorporates two significant changes that address this issue: You will no longer be able to automatically correct common spelling errors by pressing the space bar after the misspelled word. In addition, to expand abbreviations stored in your personal dictionary, you will have to press control-R or another designated hot key."

That's the kind of world we live in thanks to patents. Is that healthy?

My mind is open too: If that's a good thing by you, I'd love to hear the reasoning.

> That's the kind of world we live in thanks to patents. Is that healthy?

I agree, it's not healthy.

And I agree completely about the resources angle, if I'm alone, I'm SOL. If I'm in a huge company then I can fight. This is definitely the core failing of the patent system that it's biased toward wealth, and being abused by the wealthy.

> My mind is open too: If that's a good thing by you, I'd love to hear the reasoning.

I really appreciate you saying it that way. I don't think it's a good thing, I just appreciate the intent. And I don't think it fails 100% of the time, I think it works sometimes and fails a lot. I think getting rid of software patents has a chance of improving everything, but I'm not 100% certain. There might be unintended consequences. Like, I guess I'd put it this way: it's not very likely that the rich & resourceful will stop winning, no matter what happens, right?

> You can argue that hacker culture had its day in the sun, and that the world should move forward.

I don't want that, I want more hacker/maker culture, not less. I also want to figure out how to fund my own hacker/maker habits, but that's a separate topic. ;)

Patents do seem to be getting more toxic, but I base that on media reporting and stories of patent trolls, and not stats on the economy or number of lawsuits. So I'm curious to know more about the health of the system from a statistical perspective.

Ultimately I don't know what the solution is, and I might change my mind, but right now I don't feel like nuking the patent system is the right answer. But I do wonder if something like disallowing patent sale or transfer would help -- a company can only have a patent if the person who did the inventing worked for them at the time. They can keep it if the inventor quits or dies, but they can't sell it. Maybe something like that would stop the shell companies?

Well, from a game theory point of view, look at it like this: You can't meaningfully execute on patents (enforcement nor acquisition) unless you have resources. Those resources tend to come from companies that programmers work for, not individual programmers working at home.

So if you want more hacker/maker culture, your position would seem to run counter to that goal, no?

I love playing devil's advocate too, but there are situations where it's not quite so easy. If you feel that the hatred for patents is an overblown concern, I suppose it would be best for the people in this thread to post stories about how patents have materially affected their lives and their work. There are plenty.

Even lacking that, though, the core argument is that you need money to be able to do anything patent-related. Most hackers don't have these kinds of resources. And since patents can be used against them, advocating for patents leads directly to the disenfranchisement of hackers.

EDIT: One thing that makes it difficult to see the kinds of statistics you'd like to see: Chilling effects. When patents hang over us like a specter, you'll never see how many ventures are aborted before they're even started due to fears about patents.

The problem is twofold: Firstly, when bad/stupid patents far outweigh the good, then the net negative effect renders any positive effect meaningless.

Secondly, the complexity of modern engineering means any individual invention is worthless by itself. If a lone inventor has an idea for a cool smartphone feature, they cannot practically bring it to market, because building a smartphone is too difficult and capital intensive, and requires licensing myriad other patents, mostly owned by incumbent vendors with no interest in allowing another competitor emerge.

This means that, even if every patent in an area is "good", a patent thicket[1] will nonetheless emerge in a field following a major breakthrough, as core and ancillary techniques are patented. A handful of large, dominant vendors come to monopolise the market, new players are locked out, and progress slows to molasses for the following twenty years. Only when these core patents begin to expire can progress start again, until some new major breakthrough is made, and the entire process repeats itself.

Through this lens, the rise of patent trolls makes sense. Faced with impenetrable, monopolised markets, individuals and smaller players are incentivized to engage in parasitic behaviour, gaming the patent system to extract what value they can, since actually using their patents to compete is either impossible or impractical.

[1] https://en.wikipedia.org/wiki/Patent_thicket

Agreed with all the above. I am honestly curious - is there evidence that we're at the point where patents are a net negative? I hear a lot of strong opinions, but I am ignorant of meaningful data.

In my experience, the patent thicket is today's corporate strategy. The large companies I've worked for have undertaken a broad patent-everything strategy as a defensive way to turn any competitive claims into a game of patent tennis.

The patent in question is a patent on the obvious use, not the underlying method. "Deep convolutional neural nets trained using backprop or adversarial networks" is not the thing being patented here. "Using deep convolutional neural nets trained using backprop or adversarial networks to solve a specific problem" is what's being patented. The article argues that the known techniques aren't being applied in a particularly novel or interesting way.

I agree, and yes that happens. But the author concluded based on one example that the whole system is bringing down a whole industry. I didn't title the piece, Joe did.

And in the article he argued "the [patent] office seems prepared to give out patents on using machine learning in obvious and expected ways."

That is not and cannot be the criteria for or against issuing patents.

Luckily if I'm going to use a hammer for some job I don't have to go check to see if someone holds a patent on using the tool in that specific way. It makes some sense to patent the invention of the tool but not the use of the tool in the ordinary ways that it is meant to be used. There are thousands of types of data that can train a neural net. We shouldn't allow whichever company happens to be the first one to use it on some specific type of data to hold a monopoly on using this important new tool in that fashion for the next 15 years.

> Luckily if I'm going to use a hammer for some job I don't have to go check to see if someone holds a patent on using the tool in that specific way.

If you buy a hammer at Home Depot, the patent system doesn't affect you directly. (But it might affect the price of hammers.)

If you make hammers and sell them, you might get a cease and desist from the owner of the hammer patent. If they have a valid patent, then you don't have the legal right to produce hammers for sale without licensing the hammer.

If you build a homemade hammer and don't sell it, nobody's going to know or care or sue.

> It makes some sense to patent the invention of the tool but not the use of the tool in the ordinary ways that it is meant to be used.

Again, ordinary use is not the criteria, and it can't be. The idea is to protect the investment of the inventor. Don't forget that I agree the system is unhealthy. But if I spent a trillion dollars to invent warp drive, the use case is obvious, travel far in a short amount of time. You don't get to steal the solution just because everyone has the problem.

> We shouldn't allow whichever company happens to be the first one to use it on some specific type of data to hold a monopoly on using this important new tool in that fashion for the next 15 years.

I completely agree that the patent in the article is crap-tastic. You shouldn't be able to monopolize things you didn't invent, and you shouldn't be able to monopolize things that are too easy to invent. But if someone truly invents something useful, works hard at it, invests time and money, then - according to the patent system - they should get to monopolize it. That's the point of protecting the inventor.

(*and btw, the problem is the rich people & big companies are the ones with the time & money. I agree with others here that that is bad.)

Patents are state enforced monopoly rights, let's be clear about that.

In what circumstances do we want to have monopolies doled out, even timed ones? Even in the classic image of the sole inventor who does something shrewd but ends up with nothing because he didn't patent it; is it really the best outcome to have this one person get rich while lives are lost and technological progress of society slowed because the monopoly pricing imposed is prohibitive for all but the wealthy?

The best scenario for a patent is as a subsidy for inventions that could not or would not exist without very substantial capital investment. Software methods by and large do not fall in that category.

"Patents protect the people who develop the technology, not the competition who wants to use it for free after it works."

Equally true of people developing pure math, but math is not supposed to be patentable (except for algorithms apparently).

> Equally true of people developing pure math, but math is not supposed to be patentable (except for algorithms apparently).

Yeah, exactly, and this is why software is getting more contentious, right? Software is pure math, and it's also method and apparatus. The patent system was designed as a line between concepts and physical inventions, but software perches right smack on top of that line.

Software is very clearly on one side of the line and software patents actually depend on that. On some level it comes down to this: does the patent cover a particular representation of an algorithm, or all possible representations? I think the former is very clearly not what software patents cover as it would imply that just compiling your code or using a different programming language would leave you in the clear. If it covers all possible representations, then it really covers only a method or "concept," not any particular apparatus (the hypothetical apparatus you might use is just a detail of the concept that the patent covers; in any case, software patents are almost never specific about what sort of computer you will use, so it is not clear what "apparatus" is being described).

> in any case, software patents are almost never specific about what sort of computer you will use, so it is not clear what "apparatus" is being described

Well yeah, that's what I meant about it being on the line. The patent system was designed before computers, and it clearly was built with the idea that physical things people built, and mathematical ideas people imagined, were two separate categories. With computer software, there's no distinction. I really can build a physical machine that does things using only mathematical ideas. The patent system wasn't designed to see that possibility.

There is absolutely a distinction in the case of software: it is a mathematical idea that people "imagine" (and write down etc.). The fact that we now have tools to automate our mathematics does not change anything.

Consider what I said: software patents necessarily cover all possible representations of an algorithm. It is well known that one representation of an algorithm is a lambda expression, and there is really no doubt that lambda calculus is a field of math. It is also well known that you can convert any other representation into a lambda expression (there are explicitly algorithms i.e. you could write a compiler that does this). In other words, any representation of an algorithm is just a mathematical expression, and when you are writing software you are doing math (maybe expressed in an unusual way compared to other fields of math, but it is math regardless).

The separation is this: you can write your algorithm on paper and you still have a representation of your algorithm. Only when you represent it in a particular way that a particular computer can evaluate will you be able to automatically run the algorithm. There is no requirement that you do so; you can also evaluate your algorithm by hand with pen and paper, or in your head (as most programmers do while they are writing code). You probably evaluated sorting, addition, subtraction, multiplication, and division algorithms by hand at some point in your life (you may have also done square roots, sines and cosines, etc., depending on your age and interests); you could have also used a computer to evaluate the same algorithms (even if they are not what most programming libraries would include). In principle you could evaluate any software by hand; in practice it would be too tedious and less accurate.

I'm getting the feeling that I think we're agreeing and you think we're disagreeing. But in any case -- I hear you, I see the distinction you're making, and I agree with all of what you said. I think it's weird that math isn't patentable and software is. There was a time when that made more sense, but I think today it no longer makes sense.

That said, the line I'm talking about isn't the representational line, it's the physical line. Math can be written down in multiple representations too. The reason that math was deemed not patentable isn't because I can or can't write it multiple ways, nor whether I can solve the math problem by hand.

Patents were just designed around products made out of physical devices and physical processes. If I had to figure out how to build a machine using gears and hydraulics, or wires and chemicals, then it was patentable. If I used math to design a better airplane wing, and built the wing, then the wing was patentable along with the methods to design the wing. If I came up with a better Laplace transform, then it's pure concept and not physical product, so it was decided not patentable. I believe the distinction is mainly about you having to build & sell the product you invented, because the patent is a business protection and not a copyright. If you invent something in theory but don't build it or try to sell it, then you don't get patent protection.

My understanding is that the reason math is considered unpatentable is that mathematical statements are considered facts. This is somewhat motivated by a "religious" idea that math is discovered; there is a very ancient philosophical debate about math as a "discovery" versus as an "invention." I am squarely on the "discovery" side, but there is a legitimate question of "where" the math is prior to its being "discovered." It is kind of hard to think about "discovering" something by applying your imagination; of course, "inventing" math is a bit odd as well since truth cannot be "invented."

Anyhow, glad we agree :)

Yeah, math might have been considered facts. But now we know better, now our improved understanding is showing that software and math are two different representations of the same thing.

> there is a very ancient philosophical debate about math as a "discovery" versus as an "invention."

Yes, and it's a super interesting idea & debate too. Not to get too far off topic, but I'm a little bit more of a mind that representations are invented, while many fundamental truths are discovered (and can only be expressed through representation).

One math example that for me relates to software just a tiny bit, and illustrates why this is a debate is the 0^0 problem. We've mostly figured out how to better classify and represent that, but not before having big arguments where smart people say 1 and other smart people say 0. Mathematicians and programmers have mostly picked a convention, even though both answers are right depending on context. I would call that picking of a convention part of the "invention" side of math, as is calling it indeterminate.

But yeah, agreed, invention and discovery are both weird and problematic when you talk about math.

As a software engineer, Software is not math! its a clever arrangement of mechanisms to adapt a problem to a set already existing very generic physical processes (CPU/GPU/etc). sure at the end of day as Max tegmark argues everything in universe is math but its a really wrong level of abstraction. its like saying all biology is just complex physics.

> Software is not math! [...] its like saying all biology is just complex physics.

I hear you, and I agree with your points. But this general idea isn't exactly what I was talking about, and I don't draw such a hard line, personally. I did say that software was both method and apparatus, and I feel like you might have overlooked the apparatus part. Math has been normally viewed as only method and no apparatus. But this all really depends on what software and what math we're talking about.

I'm claiming that for the purposes of evaluating patent criteria, it's becoming more difficult over time to draw a line between math and software, not less, and I stand by that. It's possible to use math for what should be patentable inventions, and it's possible to use software to represent mathematical statements that should not be patentable.

Software to evaluate PDEs by numerical method, or to integrate expressions symbolically, is hard to say it's not math. Software to send email is harder to say it's math, except that unlike biology, we know the mathematical details of every step along the way, whether it's character encodings or network routing or spam detection or UI.

The distance between software and pure math in my mind is a lot shorter than the distance between biology and physics. But I agree that there is distance in both cases. The argument that software is math is (I think) easier to make, due to Turing and to the fact that we turn our code explicitly into binary math and CPUs only consist of arithmetic operations on numbers. The abstraction doesn't yet seem big enough to separate them.

As a computer scientist, software absolutely is math. Software is not bound to CPUs/etc.; you can evaluate algorithms by hand with a pen and paper if you want to, and you will get the same answers (maybe more slowly, but likewise if you use a slower CPU or a non-optimizing compiler). Lambda calculus is without any doubt a field of math; any code can be represented by equivalent lambda expressions and you can convert to lambda expressions automatically (a common compiler strategy for functional languages).

Yes, C and Python do not look like the expressions in a typical algebra textbook -- but algebra does not look like calculus or geometry either. Representation of your algorithm is irrelevant; as you say, it is the wrong level of abstraction.

Oh, also, in case you were thinking that there is some important difference between software and math, here is something to think about:


(Executive summary: all (terminating) algorithms are proofs of mathematical statements.)

Software is not mathematics. A web app is not mathematics. A compiler is a little closer, but still isn't.

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