CAFC Judge Regrets Decisions That Resulted In Software Patents
from the so-many-regrets dept
As the Court of Appeals for the Federal Circuit (CAFC) is considering the Bilski case, where it may finally push back on software and business model patents, it's interesting to hear one of CAFC's judges admit that he was "troubled by the unintended consequences" of the lawsuits (State Street and AT&T) that resulted in software and business model patents being effectively allowed. While it's nice to see Judge Plager worried about this now (just as the CAFC may finally change it), it's a bit of a stretch to claim that the consequences were somehow unintended. There was plenty of discussion around the time of the State Street case concerning what the end result would be if these types of patents were allowed. It's just that too many people seem to think that a change that increases patent coverage couldn't possibly have a negative impact -- despite tons of evidence to the contrary. Hopefully the next time an effort is underway to widen or strengthen patent law, people will look at what a disaster the past four years have been and recognize that expanding patentability is not something that should be done lightly.
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Filed Under: bilski, business model patents, cafc, plager, software patents, state street
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IP Laws
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IP Laws
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Re: IP Laws
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Re: IP Laws
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Timely Article on This Topic
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Re:
And how would patenting a software-enabled calculator be patenting math? Talk about begging the question.
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Re: Re:
Someone apparently doesn't know much about computers.
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How about a better solution: Require that an invention be novel, not obvious, and useful before issuing a patent on it. Basic math is always obvious and non-novel, so you can't patent it.
By contrast, for example, the CAT scan requires untold lines of software to operate -- but wouldn't a universal ban on software involvement in patents eliminate much or all of the incentive to develop a new invention on the scale of the CAT scanner?
Take it one level further: A doctor and programmer sit down and figure out how to use the data coming in from the existing hardware in a CAT scanner to programatically do something with the data that nobody currently can do or imagine doing, such as assessing risk of developing leukemia in ten years (don't ask me how this would work -- its the kind of non-obvious and novel thing a layperson like me would not be able to guess at).
Just because the hardware already exists and the entire invention is implemented by programming software for that hardware in a novel way, this should not be patentable? Seems like a good way to kneecap the incentives for innovation.
Without a patent, how does the doctor turn his invention into money? He keeps the source code and the key elements (i.e. what data from the hardware he is using, and how) secret. He distributes only object code, and makes sure the object code is encrypted in a manner that makes extracting it a violation of the DMCA (yup, the provision hollywood insisted on to stop DVD copying). Nobody learns how he does what he does, he gets protection similar to a patent, but the public is robbed of its normal payoff for issuing a patent: A LIMITATION on the time the monopoly exists combined with a complete disclosure of how the invention works.
Its popular to cast things as good or bad (or in Bush's language "wish us or against us"), but policy is awash in a sea of gray. Software patents are not bad; bad patents, however implemented, are bad. The existing standards (useful, non-obvious, novel) prohibit issuing any bad patents, software or not.
In my opinion, the real problem is that when the Federal Circuit figured out that patentable material was not limited to circuits, motors, and things with gears, the Patent Office failed to immediately hire hundreds of new examiners with expertise in the new areas. So you had examiners who were really good at determining what a bad patent would be in the area of engine design, for example, trying to figure out what is or is not novel in firewall patent examination (or in mobile message forwarding -- see NTP v RIM). Of course you get bad patents that way. Hire my grandmother as a patent examiner for motor design and you could probably get a patent for the internal combustion engine tomorrow.
Before assuming the system is DESIGNED in a way that is broken, lets examine whether the system is IMPLEMENTED in a way that is broken. Too few examiners. Too narrow a depth of examiner expertise. Too little funding for the patent office. Examinations done so slowly that patents that were novel when filed SEEM obvious ten years later when issued.
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Re:
I agree with the sentiments expressed here, in that expanding the scope of these laws necessitates a great deal of deliberation beforehand. But many people on these forums seem to ignore the fact that the reverse is also true. Like it or not, open source code is not something that's going to catch on with every programmer out there. Doing away with the ability to patent software would absolutely limit the number of people who continued designing new programs, just as allowing every piece of software written to be patented would limit people's ability to expand and improve on existing ideas - and yes, even to come up with new ones, since so many would invariably bear at least some resemblence to something prior. But we have to find a workable balance, and to do so we're going to have to accept that there will be negative consequences no matter where we draw the line.
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Re:
Monopolies, shown over and over again, are not a good thing. They actually decrease incentive to innovate. Competition in contrast, DOES work and does increase incentive to innovate.
Sometime, some area are not as "gray" as we thought and the economic of the world work differently than we think.
Heck, people still think protectionism is a good thing, despites economists's consensus that free trade is better than protectionism.
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Sneaky patent lawyer
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Re:
Um. No? You do realize that the CAT scanner was created prior to software patents being allowed, right? In other words, clearly there was plenty of incentive to create it.
Don't fall for the myth that patents are the only incentive. Usually, demand from the market works as a pretty damn good incentive on its own.
A doctor and programmer sit down and figure out how to use the data coming in from the existing hardware in a CAT scanner to programatically do something with the data that nobody currently can do or imagine doing, such as assessing risk of developing leukemia in ten years (don't ask me how this would work -- its the kind of non-obvious and novel thing a layperson like me would not be able to guess at).
Just because the hardware already exists and the entire invention is implemented by programming software for that hardware in a novel way, this should not be patentable? Seems like a good way to kneecap the incentives for innovation.
Why should it be patentable? If they can really do that in such a non-obvious manner, then it won't be so easy to copy. And, even if it is copyable, people will continue to go to the original creators who understand the process better.
If you had a chance to be treated by the dr. who figured that out, wouldn't you go out of your way (and pay more) to do so?
The fact that they invented such a solution would be a HUGE boost to that doctor's practice.
Without a patent, how does the doctor turn his invention into money?
Reputation, reputation, reputation.
He keeps the source code and the key elements (i.e. what data from the hardware he is using, and how) secret. He distributes only object code, and makes sure the object code is encrypted in a manner that makes extracting it a violation of the DMCA (yup, the provision hollywood insisted on to stop DVD copying). Nobody learns how he does what he does, he gets protection similar to a patent, but the public is robbed of its normal payoff for issuing a patent: A LIMITATION on the time the monopoly exists combined with a complete disclosure of how the invention works.
Except... no. Eventually it would be reverse engineered. In fact, the likelihood is QUITE high that someone else was coming up with the same solution anyway. As we noted recently, there is almost no major breakthrough in history that didn't have multiple independent inventors.
Besides, his patent wouldn't reveal the source code anyway, and likely wouldn't reveal the *really* useful bits in making such a process work.
Again, the doctor in question can benefit greatly from the reputation enhancement in being the first to "discover" this solution -- and then let various companies compete to make the best such solution. Everyone wins. The doctor's reputation is enhanced so he gets plenty of benefit (and money). And the competition among companies to provide a better implementation means better health at better prices for everyone.
Who loses there?
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horseshit again from Mikey
Is there any workable definition of it ?
Hint: there is none because it can't be defined
Mikey gets to sit at the kiddie table tonight
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Re: Re:
As a software developer for over 25 years, I have to disagree with you there, bucko. You obviously don't work in the commercial software field. I've worked for a number of commercial software companies, and patenting software was never even a consideration. That is, until Amazon came along.
. . . it is IMPOSSIBLE to show evidence of what they prevented someone from coming up with . . .
That's not the argument, so please stop arguing that point. Nobody said anything about "preventing" someone from coming up with something. But it does block the innovation of using something obvious (that was nevertheless granted a patent) in conjunction with some other idea. For proof, see NTP vs RIM.
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get you GED punk
The software code itself is just a code
A computer executing software code instructions is an actual machine, an apparatus with some particular function
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Re: get you GED punk
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Re: get you GED punk
The tag line for the article is not a fair assessment of Judge Plager's presentation, but is merely to fan the flames using anti-patent rhetoric.
What Judge Plager is noting, and rightly so, is that these are not issues that admit to "sound bites", and perhaps this is one of the reasons why the Court invited as many views as possible prior to oral argument in Bilski.
State Street remains good law until such time as Congress decides to the contrary.
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Re: Re:
No shit, Sherlock. But it would be patentable if it were novel and unobvious subject matter. At one time, a calculator was novel. MPP is merely giving an example as to why the argument that anything that's software related should be per se unpatentable is ridiculous.
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Re: Re:
Have you ever copied software? I have. It's pretty damn easy, no matter how non-obvious it is.
And, even if it is copyable, people will continue to go to the original creators who understand the process better.
If you had a chance to be treated by the dr. who figured that out, wouldn't you go out of your way (and pay more) to do so?
Not if, as a patient, I don't care about the process and only care about the results. As a patient, I don't care how this software works, as long as it accurately tells me whether I have lukemia. A good piece of software that could do such a thing would have to be designed to be capable of use by any trained nurse or doctor, not just the developer. And if this software can only be used responsibly by the developer, then the technology becomes a de-facto monopoly, which you seem to frown upon.
The fact that they invented such a solution would be a HUGE boost to that doctor's practice.
Indeed, especially if he's the only one that knows how to use it and does not allow anyone access to the software code, which he likely could do. However, that does not seem to promote scientific progress; that promotes secrecy.
Except... no. Eventually it would be reverse engineered. In fact, the likelihood is QUITE high that someone else was coming up with the same solution anyway. As we noted recently, there is almost no major breakthrough in history that didn't have multiple independent inventors.
Really? You think that software kept secret from the public would be reverse engineered? Tell me, how does one reverse engineer something that he does not have access to?
As for other inventors coming up with the same solution, you're making one big honking assumption. But if it's true that most major breakthroughs were invented by multiple, separate inventors, don't you think it's reasonable that these multiple inventors were able to do so because the patent system gave them access to the information they needed to construct their "major breakthrough?"
Besides, his patent wouldn't reveal the source code anyway, and likely wouldn't reveal the *really* useful bits in making such a process work.
If that's the case, then it wouldn't be valid, as it wouldn't enable one of ordinary skill in the art to practice the invention.
Again, the doctor in question can benefit greatly from the reputation enhancement in being the first to "discover" this solution -- and then let various companies compete to make the best such solution. Everyone wins. The doctor's reputation is enhanced so he gets plenty of benefit (and money). And the competition among companies to provide a better implementation means better health at better prices for everyone.
Who loses there?
Nobody, in that dream scenario. But I find it doubtful that this particular scenario would actually play out in the real world. All those great things that you think would happen to the doctor seem a little contrived, in my opinion.
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Re: Re:
Talk about not answering the question...
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Re: Re: Re:
Really? Reverse engineering software is that easy? Even on a non-obvious idea?
Not if, as a patient, I don't care about the process and only care about the results. As a patient, I don't care how this software works, as long as it accurately tells me whether I have lukemia.
Right, but it's quite likely that the doctor who helped develop such software has a pretty damn good understanding of leukemia. Otherwise, how would he have come up with such awesome software? Or, are you saying that the process isn't so complicated, in which case, why does he need a monopoly?
Indeed, especially if he's the only one that knows how to use it and does not allow anyone access to the software code, which he likely could do.
You confuse me. You just said that reverse engineering the software was easy. Apparently it's not as easy as you make it out to be.
You were either lying above or lying here. Which is it?
Really? You think that software kept secret from the public would be reverse engineered? Tell me, how does one reverse engineer something that he does not have access to?
Wait, you were the one who claimed it was easy to reverse engineer. I am confused.
As for other inventors coming up with the same solution, you're making one big honking assumption.
No, not really. Just repeating well established discussions on this topic. We've talked about it in the past: http://www.techdirt.com/articles/20080507/0114581051.shtml
Perhaps you missed it.
But if it's true that most major breakthroughs were invented by multiple, separate inventors, don't you think it's reasonable that these multiple inventors were able to do so because the patent system gave them access to the information they needed to construct their "major breakthrough?"
Um. Nope. Many of the examples found in the research predate any patent system:
(Quoting from the New Yorker on this):
How many of those required patents? Not many. Especially since many predated patents, and others were discovered in totally different countries where access to the others' patent system was anything but easy. But lets (again) not let facts get in the way.
If that's the case, then it wouldn't be valid, as it wouldn't enable one of ordinary skill in the art to practice the invention.
Riiiight. So that explains some of the incredibly broad patents we see all the time. And it explains the instructions given to patent attorneys to write the claims as broadly as possible to make sure it includes future inventions.
Nobody, in that dream scenario. But I find it doubtful that this particular scenario would actually play out in the real world. All those great things that you think would happen to the doctor seem a little contrived, in my opinion.
Yes, that's why Jonas Salk had to get a patent on his polio vaccine... oh wait, he didn't. Yet, he did quite well for himself in curing polio.
Yet, according to folks like yourself, that's impossible. Why, he has no incentive at all to cure polio.
If you don't think that the guy who discovers a way to catch leukemia 10 years before it shows up won't get fame and fortune for the discovery, you haven't been paying attention to the world we live in.
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Re: Re: get you GED punk
MLS? Seriously? You claim that *angry dude*, a guy who has refused to make any actual argument for years, is wasting his skills "trying to make points"?
We've asked angry dude to support his positions for years (and to explain his outright contradictions and blatant lies) and he chooses to respond with insults instead.
I recognize that you're on the same side, but you don't do yourself any favors aligning yourself with him.
Of course, given your actions in our last conversation, where you resorted to the tactics of an 8 year old, perhaps that's not surprising that you would find a kindred spirit in angry dude.
I had assumed, apparently incorrectly, that you were above his level of "debate."
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Re: Re: Re:
"Subject matter" isn't patentable. Neither are stories, plays, songs, etc..
And doing a very poor job of it.
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Re: Re: Re: get you GED punk
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Re: Patent + Copyright = ?
The Mad Patent Prosecutor wrote:
Why not express it this way:
Do you see the point? Why should software be both copyrightable and patentable? Isn't one form of legal protection enough? Why do you need two?
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Re: Re: get you GED punk
software code itself is meaningless and useless unless executed on an actual computer
Each software code instruction gets translated into one or more operations performed by the actual hardware device - a microprocessor
A computer running software code is a specialized machine to perform some particular function
Computer can be a general purpose computer or a specialized device
A specialized computer can be anything from cell phone to ABS brakes control module
What is so difficult to understand here ?
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yep dude
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Re: Re: Patent + Copyright = ?
It would be ridiculous for my software calculator to be copyrightable because software is subject to copyright, for example, but my mechanical calculator to not be copyrightable because the switches are no longer software.
Because they don't say or mean the same thing. Learn the difference between patent and copyright and get back to me.
Do you see the point? Why should software be both copyrightable and patentable? Isn't one form of legal protection enough? Why do you need two?
No, I don't see the point. Patent and copyright cover entirely different things. Patent covers the utility of the software (i.e. what it does) whereas copyright covers the literal words and aesthetics of the software (i.e. how it looks).
A piece of software can be unpatentable (say, because it is not novel) but copyrightable because it looks different than other pieces of software like it. However, a copyright on software is notoriously thin, and that's why it's almost useless (unless you want to stop counterfeiters). Hence, a copyright does not really software inventors a legal recourse against those who would misappropriate the software invention.
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Re: Re: Re: Patent + Copyright = ?
Copyright on software is useful for protecting a large base of relatively trivial code from literal copying
Copyright does little to protect a relatively small piece of sotware with some novel and unobvious functionality from being reverse-enginered and rewritten from scratch (e.g in a different computer language) to escape copyright law
Some people argued that patents are more appropriate for protecting software than copyrights
After all software is not like a book or visual art - it's not meant for reading or viewing, it is meant to be executed on an actual hardware to achieve a particular function
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Re: Re: Re: Re:
...
You confuse me. You just said that reverse engineering the software was easy. Apparently it's not as easy as you make it out to be.
...
Wait, you were the one who claimed it was easy to reverse engineer. I am confused.
Strawman alert: I never claimed that anything was easy to reverse engineer. I claimed that software is easy to copy. There's an astronomical difference. Once you copy a piece of software, there's no need to reverse engineer it: you have the function you were looking for.
However, if one does not have a copy of said software (say, because the developer keeps it secret), then I find it rather difficult to say that one could readily reverse engineer said software.
Right, but it's quite likely that the doctor who helped develop such software has a pretty damn good understanding of leukemia. Otherwise, how would he have come up with such awesome software? Or, are you saying that the process isn't so complicated, in which case, why does he need a monopoly?
No, I'm saying that knowing the process is not important to using the software. It is certainly important to developing the software, but a lack of the specific knowledge of how the software works is likely not critical to using the software effectively. To analogize, most radiologists do not know how to construct an X-ray machine, but they certainly know how to use one. To further analogize, I have no idea how Google's PageRank software works, mainly because I haven't looked at the patent and I'm not a skilled practitioner in the art. But I certainly know how to use it to my benefit.
No, not really. Just repeating well established discussions on this topic. We've talked about it in the past: http://www.techdirt.com/articles/20080507/0114581051.shtml
Perhaps you missed it.
You have a strange definition of "well established."
How many of those required patents? Not many. Especially since many predated patents, and others were discovered in totally different countries where access to the others' patent system was anything but easy. But lets (again) not let facts get in the way.
No, let's not. Here's a fact: the many discoveries mentioned in your quote are scientific and mathematic principles that, under today's law, would be per se unpatentable. Here's another fact: most of the discoveries mentioned in the quote that are per se patentable were discovered in an age when patent law existed, and many of those inventors did acquire patents for their work. But no, let's pretend that patents were of no incentive to those people.
Riiiight. So that explains some of the incredibly broad patents we see all the time. And it explains the instructions given to patent attorneys to write the claims as broadly as possible to make sure it includes future inventions.
You seem to be confusing the design of the law with the implementation of the law. What explains the granting of over-broad patents is the inadequate examination those patents were given at the Patent Office. Failures of the Patent Office are not the same as failures of patent law.
Yes, that's why Jonas Salk had to get a patent on his polio vaccine... oh wait, he didn't. Yet, he did quite well for himself in curing polio.
Few doctors and scientists are as benevolent as Dr. Salk.
Yet, according to folks like yourself, that's impossible. Why, he has no incentive at all to cure polio.
Strawman alert: I never said that he would have no incentive to cure polio. But I must say that economic incentive does not appear to be Salk's motivation for discovering the polio vaccine. As I said, few doctors and scientists are as benevolent as Dr. Salk.
If you don't think that the guy who discovers a way to catch leukemia 10 years before it shows up won't get fame and fortune for the discovery, you haven't been paying attention to the world we live in.
I don't doubt that, especially if he kept the process of finding that information secret.
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Re: Patent + Copyright = ?
Willton wrote:
And yet they both apply to software. Why should that be, if they are supposed to cover entirely different things?
So, do you see the point yet?
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Re: Re: Re: Re: Re:
Ah, my confusion then. I was merely talking about the effort to reverse engineer it, not to copy the exact software.
However, if one does not have a copy of said software (say, because the developer keeps it secret), then I find it rather difficult to say that one could readily reverse engineer said software.
Really? Then you don't spend much time around software developers. Once someone explains that something has been done, reverse engineering it in software takes some time, but it's a challenge plenty will jump on. Time and time again, you hear that something was done, and almost immediatley, you see other implementations of it.
No, I'm saying that knowing the process is not important to using the software. It is certainly important to developing the software, but a lack of the specific knowledge of how the software works is likely not critical to using the software effectively. To analogize, most radiologists do not know how to construct an X-ray machine, but they certainly know how to use one. To further analogize, I have no idea how Google's PageRank software works, mainly because I haven't looked at the patent and I'm not a skilled practitioner in the art. But I certainly know how to use it to my benefit.
Indeed. But you still miss my point. The doctor in question will have no shortage of patients, as many would want to go to the source -- the guy who understands the issue so well that he was able to develop the original piece of software for it.
You have a strange definition of "well established."
Well, considering the first explanation of the phenomenon was discussed almost a century ago, and there was a "law" named for it almost 30 years ago, and there are widespread discussions analyzing it... I think my definition of "well established" is quite reasonable.
What standard were you using?
Here's a fact: the many discoveries mentioned in your quote are scientific and mathematic principles that, under today's law, would be per se unpatentable.
And yet, by your own claims, the only reason multiple people would discover them is thanks to patents. Oops. You have a funny way of admitting you were wrong.
Here's another fact: most of the discoveries mentioned in the quote that are per se patentable were discovered in an age when patent law existed, and many of those inventors did acquire patents for their work. But no, let's pretend that patents were of no incentive to those people.
Don't confuse correlation with causation. Of course, they would apply for a patent. If someone's going to hand you a gov't granted monopoly, why *wouldn't* you go for it? But was that the *reason* most of them made their inventions? In most cases it was not. If you study the history of new inventions, you find that it's quite rare. The incentive is in getting a new product to market where a need is felt.
You seem to be confusing the design of the law with the implementation of the law. What explains the granting of over-broad patents is the inadequate examination those patents were given at the Patent Office. Failures of the Patent Office are not the same as failures of patent law.
When the failure of the patent office is *because* of systematic failures with the patent system, then I would argue that they're one and the same.
I never said that he would have no incentive to cure polio. But I must say that economic incentive does not appear to be Salk's motivation for discovering the polio vaccine. As I said, few doctors and scientists are as benevolent as Dr. Salk.
Um. You said that it would not play out in the real world. I showed you that it did.
Besides, you seem to have missed the point (as per usual). Plenty of doctors would do anything to get the same level of fame as Salk -- and they wouldn't do that by hiding some massively secret solution away. They would do that by opening it to the world, and having the world beat a path to the door... as they did with Dr. Salk.
You seem to have a rather willful blindness to actual historical events, which you make even worse by simply crediting the patent system with things that study after study has shown it does not have an impact on.
I understand that it must be tough to let go of these things, but it's about time that you checked some of your assumptions.
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Re: Re: Re: get you GED punk
A microprocessor is a multi purpose machine UNTIL you put a partiular bit of software on it to perform a particular task.
The software does NOT materially change the hardware be it an ABS control module (microprocessor controlled) or a laptop or super computer.
In short the software does not materially alter the machine. and is not a machine in and of itself. It's machines that, in the broadest sense, that are or should be patentable.
Which is where the assertion that where a mechanical calculator is patentable (a machine) is somehow fair and so should software calculators (an mathematical expression at it's core) should be two.
Is the light coming on?
If not, then let's try this one on for size.
My mathematical calculator can run on any microprocessor (aka CPU) that it is compiled for or it's language interpretor is compiled for (even if it's JIT code as in Java) and still doesn't materially change the physical machine it's running on.
In short, like a book, it's portable and it's a single expression of an idea which is COPYRIGHT qualified and not patentable.
Further, as I stated above all code at it's bit level instructions is mathematics and nothing more no matter how fancy the screen presentation of that mathematics is.
Sure VB, Pyhton, Perl or even C/C++ isolate the coder from that to some extent but they are still littered with mathematical expressions.
As mathematical expressions cannot be patented why should software be?
When you come up with an answer that makes sense other than insulting people please let us know.
Bottom line is that no matter how far you stretch the concept software is not a machine. The machine, regardless of the software on it, is the ugly box on your desk or lap or in your remote control for your tv.
(Don't get me started on Business processes because the entire concept is just too laughable for words unless you're a consultant making a living out of "fixing" a company's processes. If they were that good at it they would be running an enterprise and not consulting. Which is another way of saying they're snake oil salesmen.)
Now, when one of the judges that caused this debacle to occur is having second thoughts due to the unintended consequences of his decision I'd say you ought to listen.
It's called the Law of Unintended Consequences for good reason.
ttfn
John
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Re: Re:
Not that in the world of software this hasn't been done since day one where computing devices replaced patented mechanical devices.
It doesn't violate the patent because the computing device, a mechiancial/electrical device in and of itself isn't the mechanical device in question.
Nor is the software that it runs. I may be a mathematical expression of the mechanical device in question but it isn't a copy of said device nor can it ever be.
Should software patents be eliminated then the world wouldn't change one iota from what it is now or has been since the 1940s when the first practical binary computing devices came into use in World War II for military purposes.
Setting up phony straw men (or women so I'm not accused of sexism!) doesn't make your argument any better.
In fact it fails as it shows a lack of grasp of reality.
ttfn
John
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Re: horseshit again from Mikey
Is there any workable definition of it ?
Hint: there is none because it can't be defined"
So, if there is no workable definition then how can something without a workable definition be patented?
Thanks for making THE telling argument against software patents.
For once, you made sense
ttfn
John
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Re: Re: horseshit again from Mikey
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