[IP] more on Re: Patents -- What is the distinction?]
Subject: Re: Patents -- What is the distinction?
Date: Mon, 16 Aug 2004 19:55:32 -0400
From: Seth Johnson <seth.johnson@xxxxxxxxxxxxxxxxxxxxxxx>
Organization: Real Measures
To: dave@xxxxxxxxxx
CC: Ip <ip@xxxxxxxxxxxxxx>, bts@xxxxxxxxxxxx,tom_gray_grc@xxxxxxxxx,
patents@xxxxxxxx
BCC: phm@xxxxxx, rms@xxxxxxx, moglen@xxxxxxxxxxxx
References: <4578EBF4-EFBD-11D8-9EEC-000393D166C6@xxxxxxxxxx>
For IP.
You know, Dave, the reason why there's so much talk about software
patents
right now is because in Europe they are not legal and there is presently
very successful opposition being kicked up to efforts to make them
legal.
In Europe right now, the EU Commission has been trying to tell the
public
that they are not trying to allow patents on software "as such," while
at
the same time trying to pass a Directive making "computer-implemented
inventions" patentable.
Incidentally, I'll tell you the reason: it's just because their key
performance indicator for "innovation" under their "Lisbon Strategy"
for the
European Union, includes a simple count of "patents!"
A patent on software in a device is a patent everywhere. This is
because
software is abstract, and that's what happens when you patent
abstraction.
Making software in a device patentable, is not in any way different from
making software patentable.
It's not just because that's what a patent is, and patents are an
unvarnished good. An abstraction is a general rule by its very nature,
freely available for anyone's use. A patent is a rule under the law.
In 2000, the European Patent Organization tried to take the provisions
out
of the European Patent Convention which state, among other things, that
computer programs cannot be patented, but they failed. So now the EU
Commission and other parties in the European patent establishment
bureaucracy are trying to draw deceptive distinctions between
"computer-implemented inventions" and "software as such."
They're actually trying to pass a law to accomplish one thing while
publicly
professing that it's doing the exact opposite (not allowing patents on
software "as such" or "setting clear limits on patentability" or
"preventing
a slide toward US-style software patents" -- all abject nonsense, but
exactly what's being said by the proponents of this Directive). Every
time
opposition kicks up, they add fake qualifying clauses and make public
pronouncements saying that the Directive will not allow patents on
software
"as such."
This "how do you distinguish hardware and software" line is an analysis
that
indirectly emphasizes "protection" rather than the fact that patenting
abstract instructions given to a generic logic device is an absolute
impediment to innovation. This is not to speak of questions regarding
freedom and a certain kind of understanding which people have been
encouraged to forget of late.
It's not that you can patent hardware, but you can't patent software;
it's
that you can't patent abstraction. The nature of the medium in which
you
express your ideas makes no difference. A specific kind of hardware,
the
generic logic device, has brought about the existence of software, the
ability to code such a machine in those terms. The generic logic device
provides abstract logical functions that may be directed by sequences of
instructions which are themselves inherently abstract. The reason not
to
patent software is because it's abstract -- it's logic! Whatever level
language you use and whatever medium you express it in, it still
translates
into logic. Code is certainly embodied in all sorts of physical forms,
but
it is a representation of abstract ideas, just as surely as written
mathematical calculations are.
Note that right now, in Europe, individual computer users may hold that
the
presumption of the law is expressly on their side, that they may program
their computers without regard for the ridiculous prospect that someone
may
claim a patent on the logical algorithms that they thereby express.
It's a surprise to me the way this question about distinctions has
cropped
up on your list, which is generally focused on US policy.
Observe as well that it's the EU Commission and other proponents of
software
patents in Europe who put the question in terms of misguided
distinctions,
without specifically taking the pains to address the nature of the
subject
on its own terms.
The FFII has a lucid page on what's going on:
http://swpat.ffii.org/log/intro/index.en.html
The following (by me) puts things very bluntly:
http://kwiki.ffii.org/SwpAbst040814En
Seth
David Farber wrote:
Begin forwarded message:
From: Brian Thomas Sniffen <bts@xxxxxxxxxxxx>
Date: August 16, 2004 3:04:18 PM EDT
To: dave@xxxxxxxxxx
Cc: tom_gray_grc@xxxxxxxxx
Subject: Re: [IP] Patents -- What is the distinction?
You're absolutely right that you should be able to patent your
machine, including the software inside. What most people complaining
about software patents are talking about would not interfere with that
-- they (well, we) have a problem with a different type of software
patent. As a couple of examples, there was a patent on using the RSA
algorithm to secure data. That was fine. There's a patent on use of
the LZW algorithm to compress data -- somewhat less fine. There's a
patent on using XOR to draw a cursor on a display. That's completely
not fine. And there's a patent on remembering a customer so that he
can buy things just buy telling you he wants them -- the infamous
Amazon "one-click" patent. That's so far from fine it's coarse.
What's the distinction here? Well, there are two. The Amazon patent,
and many other very, very bad software patents, are patents on
business methods. There's a booming industry in taking any
traditional method of commerce, slapping a web interface on it, and
patenting it. And this is legal -- now that organization is the only
one who can use that technique, for years and years.
The one-click idea is obvious. There were plenty of ways of
implementing it, and plenty of people who'd done pieces of it. But
now, not only does Amazon have a monopoly on one-click purchases, but
on many systems like that or incorporating pieces of it.
These patents on business methods in software are a real, serious
problem. And they share a characteristic with the other troublesome
software patents: they're obvious.
A patent on use of XOR for drawing a glyph that's supposed to be
obvious is right up there with a patent on using a lever to lift heavy
things. It's a normal, expected part of building a graphics system.
It's so basic that it's definitional: a cursor *is* a quickly-drawn
obvious glyph. XOR *is* the maximum contrast operator, and *is*
simple to calculate.
Patents like this are scattered throughout the current software
development universe. Rederiving LZW is a standard undergraduate
information-theory problem. That is, a bunch of undergrads will be
given LZ and told to improve it to solve certain problems, and the
vast majority of the class will come in the next morning with LZW.
But until it expired very recently, somebody (UNISYS, more or less)
has a monopoly on use of that algorithm for compression, granted as a
reward for developing something innovative and non-obvious. There are
over two hundred similar patents which encumber any reasonable
implementation of a computer operating system. It's not possible to
build a reasonable software system without infringing on many of these
patents. That strongly implies that they're not obvious, and many
never were.
What's the solution to this problem? There are several possibilities,
none of which are harmful to real innovators:
* Reduce the amount of time a patent lasts.
* Examine applications much more closely for obviousness and
innovation.
* Rescind patents when their art matures enough to consider their
ideas obvious.
* Eliminate business-method-in-software patents. For example, require
that the technique be globally novel, not merely novel within the
field of software design.
But none of those hit the real core of the problem: software
construction is all about abstracting ideas and methods of operation.
Code reuse is common and vital. But the industry's still in its
nascent stages. Patents on techniques that weren't innovative in 1988
are still restricting what people can build; that became basic,
standard technique over a decade ago. The only way to fix that
problem is to remove the ability to patent ways of manipulating bits
with other bits.
-Brian
David Farber <dave@xxxxxxxxxx> writes:
From: Tom Gray <tom_gray_grc@xxxxxxxxx>
Date: August 16, 2004 11:01:56 AM EDT
To: dave@xxxxxxxxxx, tom_gray_grc@xxxxxxxxx
Subject: Software Patents -- What is the distinction?
There have been some recent postings to the IP list
about software patents. Frankly I cannot understand
the point behind these posts and others that I have
seen. I have designed hardware and I have designed
software. I cannot see any real difference in the
design of each. In fact, in designing a solution to a
problem, I am often faced with the choice of
developing a custom circuit or of choosing one of many
processor/software design architectures. The choice
between hardware and software does not depend on
anything inherent in either technique but in various
aspects, such as cost, space availability etc., that
depend on the current technological context.
Sine patents do not protect a design in itself but the
combination of a solution and a perceived problem, I
cannot see any reason why there should be a
distinction between a hardware and a software-based
design in this regard.
If I design a piece of hardware that contains a
controller which sequences circuit behavior through
some custom microcode, should I not be able to patent
this design. It is both hardware and software and both
neither.
Why should patenting not apply to software-based
designs?
Tom Gray
--
DRM is Theft! We are the Stakeholders!
New Yorkers for Fair Use
http://www.nyfairuse.org
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