Appeals Court Reiterates: ACLU And Others Are Allowed To Sue The Gov't Over Secret Spying

Petitioning The Government Against Software Patents

from the yes,-but... dept

Fri, Sep 23rd 2011 3:56pm — Mike Masnick

Apparently I had missed that the White House set up a platform for people to petition it directly. A few folks have sent over a petition that was set up asking the administration to reject software patents, noting that they are hindering the software industry, one of the few "strong" industries in the US. The specific petition asks the government to stop issuing software patents... and to void all existing software patents.

While I understand the sentiment... there's a big problem here that plenty of patent folks will point out: there's no good definition of "software patents" right now. If you just say software patents are banned, what will it mean? Chances are it will mean that patent attorneys will start writing "software patents" in a way that don't look like "software patents." I think that patents that end up covering software are a big problem, but I don't think people are doing themselves any favor complaining about software patents if they can't explain to the government what a software patent actually is.

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Filed Under: patents, software patents, uspto, white house

61 Comments

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Mike C. (profile), 23 Sep 2011 @ 3:55pm

Not well defined
The problem is that the petition does not adequately explain the issue and so a lot of people simply won't be able to understand the scope of the problem. I'm also surprised you chose to write up this one instead of poking around and finding another that you might like better.

My personal favorite right now is the Abolish the TSA petition. It's succinct but accurate and seems to get the point across.
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jduhls, 23 Sep 2011 @ 4:10pm

We hired them
But we hired them to define that appropriately for us. Isn't it part of their job?
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fogbuzd, 23 Sep 2011 @ 4:14pm

Software patents are like porn. I know it when I see it.
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abc gum, 23 Sep 2011 @ 4:31pm

"there's a big problem here that plenty of patent folks will point out: there's no good definition of "software patents" right now."

Ok - then ban all patents.
That was easy
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Anonymous Coward, 23 Sep 2011 @ 4:33pm

You guys just don't get which branch of government to talk to, do you?
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Anonymous Coward, 23 Sep 2011 @ 4:47pm

Would be more persuasive without the spelling and grammatical mistakes (and if it exhibited a basic understanding of who decides what in government).
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jduhls, 23 Sep 2011 @ 4:52pm

Re: We hired them
This is a "plebian" government interface. You're asking too much.
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zcat, 23 Sep 2011 @ 4:57pm

http://www.parliament.nz/en-NZ/PB/Legislation/Bills/a/f/2/00DBHOH_BILL8651_1-Patents-Bill.htm

Get ting them to define and exclude software was the easy part.. getting them to actually pass the damn bill seems to be a lot harder. This one was already on the table, but they decided to pass a new three-strikes copyright amendment under urgency instead.
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Mike Masnick (profile), 23 Sep 2011 @ 5:07pm

Re:
You guys just don't get which branch of government to talk to, do you?

I'm sort of curious who the "you guys" you refer to might be?
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6, 23 Sep 2011 @ 5:14pm

" I think that patents that end up covering software are a big problem"

So then Mike why don't we define it as "patents that end up covering software"?

Because enforcement is all that really matters. You can have the office issue a gazillion patents that don't look like software but would "end up" covering it. So long as the gov. makes an easy way to have a patent judged to be or not to be such a patent then you're golden.
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6, 23 Sep 2011 @ 5:16pm

And to all the people saying that people here don't understand which branch of gov to talk to, I would note that if you got Obama on board for this, or even his staff, and they convinced the PTO to take this stance in court then we needn't involve congress all that much. Obama can decide how he wants to enforce the laws, see for instance the DOMA fiasco.
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TechnoMage (profile), 23 Sep 2011 @ 5:16pm

Signed and Posted
Signed this and posted it for every single tech person I know, (ranging from Software Engineers, PhDs, Network/Sys Admins, Hackers, et. al.) And It is almost past the 5000 signature mark, and I'm SURE it will hit that soon, and will be past the "mark" to get official comment from the White House.
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surfer (profile), 23 Sep 2011 @ 5:18pm

Re: We hired them
some of us have a secret clearance provided by the TSA, and I do not abuse mine, a SIDA clearance requires that you wear identification between the shoulders, above the waist, yet probably 60% of knuckledraggers do not even comply with this simple directive..
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TechnoMage (profile), 23 Sep 2011 @ 5:29pm

Re: Signed and Posted
Oh, and I CAN define what a software patent is, Any mechanism that can be mathematically converted to a mathematical formula (the technical definition.)

All programming code(each individual instruction) has a equivalent mathematical formula.

Ex 1: X=Y+1 ---------becomes-> X=Y+1 ....Yes I know... Obvious, but still
Ex 2: For Loops -----becomes-> Mathematical Induction
Ex 3: If A Then B ----becomes-> A ⇒ B (yes this is actually not 'quite true' but it is close)

And there are more here: List of Math Symbols, So I think it would be easy to define software patents... IF we had a patent categorization system in the first place(and we still need it)
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TechnoMage (profile), 23 Sep 2011 @ 5:35pm

Also the government already has a categorical system...
Library of Congress Classification
http://www.loc.gov/catdir/cpso/lcco/

Now... it isn't GREAT... by any means... b/c pretty much everything to do with Computers/Computer Science is a sub-sub-sub category... BUT... it WOULD allow for proper categorization of patents (most would remain empty... like Law, but still they would be there if needed.

PLUS... Librarians work with this system already... so there is a body of people who have mastered this system... can't say so much with "all" of patents.

(I'll stop recursively commenting now)
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Anonymous Coward, 23 Sep 2011 @ 5:42pm

do these petitions even do anything at all? there's one on abolishing the TSA that's got like 11,000+ signs for god's sakes and nothing's been about it
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ChurchHatesTucker (profile), 23 Sep 2011 @ 6:14pm

Re:
Even just banning the ones that end with "on a computer" or "on the Internet" would be an improvement.
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Anonymous Anonymous Coward, 23 Sep 2011 @ 6:23pm

Patentable Definition
This seems fairly simple. It has to be made. A physical object. If you cannot pick it up (other than the paper the patent is written on).

This definition would also take care of 'business model' and algorithm patents.
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fogbugzd (profile), 23 Sep 2011 @ 6:35pm

A good definition of software would be wonderful but let's face it, the current situation is so bad that a ban on software patents without a good definition of software would still be better than the current situation.
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abc gum, 23 Sep 2011 @ 6:45pm

Definition of bad patent
Any patent which is also covered by copyright.
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Andrew D. Todd, 23 Sep 2011 @ 7:29pm

How To Define Software.
Suppose we define the notion of a "Congealed Computer Program."

A device shall be said to be a "Congealed Computer Program" if it can be functionally replaced by a general-purpose computer (or a network of computers) running a computer program or programs.

A general-purpose computer shall be understood to be equipped with any or all accessories which are in widespread use, and which are not mutually exclusive, eg. screen, keyboard, mouse, printer, microphone and speaker/headphone plugs, TV tuner card, modem and/or network card or WiFi. For purposes of computational feasibility, the computer shall be a million times faster than those currently in production (twenty years of Moore's Law). A reasonable complementary definition of "an accessory to a general-purpose computer" might be whether there exists a USB class library for the device in question.

A supplementary definition of "functionally replaced by a general purpose computer" might be whether the device can, in principle, be replaced in such a way that the computer inputs and outputs involve trivial quantities of energy. An engine, for example, is not a congealed computer program, because one can make program which shows pistons moving up and down on the screen, but it does not do real work, such as turning a shaft. A modem, on the other hand, is a congealed computer program, in the sense that one could cause the logic unit to emit a very small amount of power, which gets fed into an amplifier, and stepped up to line voltage.

A Congealed Computer Program shall be considered as software for purposes of establishing "machine or transformation." Returning to the modem, what you would have to do to get a hardware patent would be to exploit some hitherto-unforeseen property of the wires connecting the modems, or something like that.

I think this is a reasonably workable definition. It does not have to cover fundamental components, such as flip-flops or operational amplifiers, because those are deep in prior art, long before the patent horizon.
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Anonymous Coward, 23 Sep 2011 @ 8:18pm

Re: How To Define Software.
That is not a good definition of software.

The best definition of software uses computation theory, much like TechnoMage did in his post, but more formal, using equivalence to a computation model.

Groklaw had a few epically long posts explaining this in detail. Here they are:

* An Explanation of Computation Theory for Lawyers
* An Open Response to the USPTO -- Physical Aspects of Mathematics
* Why Software is Abstract, by PolR
* 1 + 1 (pat. pending) � Mathematics, Software and Free Speech
* A Simpler Explanation of Why Software is Mathematics by PoIR
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Daddy Warbucks, 23 Sep 2011 @ 9:33pm

Govt Branch
I understand which branch is in charge of these matters. Too bad it happens to belong to the Marxist model of a Centrally Planned Markets.
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Anonymous Coward, 23 Sep 2011 @ 10:30pm

If we don't know what a software patent is, then how are companies able to sue each over over them? IE; Oracle vs. Google over Java/Android? Shouldn't the burden of what defining a software patent is be on the entities that profit from them as opposed to the folks attempting to abolish it? This seems backwards to me.
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The eejit (profile), 24 Sep 2011 @ 1:47am

Re:
It's on the table. Granted, that table has a ridiculously sluggish conveyor belt to the actual people (unless they use the fastrack one right next to it) who do this for a living and generally get to mooch off the government and private entities.
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WysiWyg (profile), 24 Sep 2011 @ 2:30am

Re: Patentable Definition
Maybe not that it has to be made, but it has to be possible to "make it". I'm thinking a requirement for "blueprints" or similar.

If it can't be "translated" into a "blueprint", then it's not patentable.

AND the patent only covers that specific "blueprint", not other things that looks like it, leaving the door wide open for independent inventions.
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Richard (profile), 24 Sep 2011 @ 4:06am

Rather than ban s/w patents
One could say that you cannot be held liable for infringing a patent if all you do is to write software for hardware which is, of itself, non-infringing. This would allow all those patents to be left on the books - but effectively neutered.

The arguments in Europe over s/w patents (and the shenanigans of those who have attempted to evade the ban) do show that Mike is correct here - so moving the definition of s/w from the arena of the patent itself to that of the alleged infringement may be a better route.
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staff, 24 Sep 2011 @ 6:32am

another biased article
In Federalist No. 43, James Madison wrote regarding constitutional rights of inventors, "The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals."

The Constitution says �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�. Therefore, if an invention is useful and promotes science, it should be patentable. It�s that simple.
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shawnhcorey (profile), 24 Sep 2011 @ 6:51am

All software is an algorithm. This is a proven fact. By law, algorithms can not be patented. All software patents are illegal. It's about time the government enforces the law.

All business methods are algorithms. A rose by any other name would smell as sweet. It doesn't matter what you call it, it's still an algorithm. And unpatentable.
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abc gum, 24 Sep 2011 @ 7:10am

Re:
"You guys just don't get which branch of government to talk to, do you?"

It is sad that you live in an us versus them world.
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Anonymous Anonymous Coward, 24 Sep 2011 @ 7:15am

Re: Re: Patentable Definition
Actually, I think we need to require that the patent be in or near production as well. If you stop production, you loose the patent. The patent may ONLY be held by someone 'using the patent for production'. No Patent Trolls. No keeping technology locked up.

While we are at it, limit all IP to 7 years, no exceptions.
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Noah Callaway, 24 Sep 2011 @ 8:43am

Re: Re: Signed and Posted
Why not any operation or set of operations that could be completed by a Turing Machine?
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Noah Callaway, 24 Sep 2011 @ 8:50am

Re:
You guys just don't get which branch of government to talk to, do you?

I can't speak for everyone, but I can say with a certainty that I do. I think almost everyone is aware that congress is the entity that writes and passes legislation in this country. However, to "talk to congress" on this issue would require contacting 538 different offices.

If the president asked congress to "take up bill XYZ", then it immediately becomes part of the national conversation. The president is a shortcut to call all 438 representatives, and 100 senators in one petition. As Aaron Sorkin puts it in the The West Wing the president is "a human starting gun".

So, yes, I think we are talking to the correct branch of the government.
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Anonymous Coward, 24 Sep 2011 @ 9:20am

Re: another biased article
"Therefore, if an invention is useful and promotes science, it should be patentable. It�s that simple."

Not quite... if the PATENTING of that invention would be useful and promote science, it should be patentable. The argument about which patents promote science and which hold it back is the point here.
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Robert Shaver, 24 Sep 2011 @ 10:15am

Is software patents really the issue?
First off, there is no such category at the patent office as a "software patent" is there? Isn't the real problem overly broad and vaguely defined patents?

If I have invented a widget that does something useful, novel and non-obviousness to a skilled practitioner in the art, why does it matter if it is build with gears, levers and springs or with a machine that includes software or firmware?

Software is not an algorithm ... it implements an algorithm. So do mechanical machines. Take for example US patent # 6,183087 B1 granted on 6 Feb, 2001.
http://www.google.com/patents?id=xQwFAAAAEBAJ&printsec=abstract&zoom=4&source=gbs _overview_r&cad=0#v=onepage&q&f=false

From the abstract:
"A driving mechanism such as a Geneva Mechanism which allows a load, such as film in a motion picture projector, to be intermittently advanced with a controlled acceleration."

I leave it to you to read the rest but it would be hard to deny that this machine implements are rather simple algorithm.

The standard Geneva Mechanism is not new ... they reference it as prior art. What they did was make some small changes to the shape of the star wheel and drive pin to reduce the intermittent motion time, reduce the load on the mechanism and the load. (From the Summary of the Invention" section.)

Another way to put it is, they changed the algorithm the device implements.

It is the same as a car transmission ... it isn't an algorithm but it does implement an algorithm. If I invent a way to make car transmissions better are you saying that if I implement this improvement with machine parts it's patentable. But if I can get the same result by microcomputer (with software in it) hooked to the transmission then you're all saying that it should not be patentable?

If that's what you're all contending then I disagree.

If you're saying that patents that are vaguely defined and be construed to cover a broad range of things the original inventor never intended, then I might agree.
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abc gum, 24 Sep 2011 @ 11:11am

If I can patent a program written in a particular language, why is it that I am not allowed to patent a story written in a particular language?

http://www.plotpatents.com/

Did this guy ever get his patent?
The argument for patents upon written material is absurd.
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VMax, 24 Sep 2011 @ 11:42am

Re:
Just remember rule #34 then
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Anonymous Coward, 24 Sep 2011 @ 2:33pm

Software is any set of instructions that a machine/person can execute to produce data or useful work.
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Anonymous Coward, 24 Sep 2011 @ 2:39pm

Re: another biased article
You do understand that software alone is not useful?

Software commands what a machine or person can do, we don't patent protocols, we don't patent business practices and we don't patent laws do we now?
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RobShaver (profile), 24 Sep 2011 @ 2:50pm

Re:
That was my point. The problem isn't "software patents", the problem is draconian IP laws in general and patent law in particular.

I think we should reward people doing manual labor, like warehouse pickers, farm labor, factory workers, because nobody wants to do those jobs. Artists and inventors create because they enjoy it so pay them less.
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Anonymous Coward, 24 Sep 2011 @ 3:10pm

Re:
Yes, but his logic is not, it underlines the really bad assumptions made in the past to grant patents and copyrights to a lot of things.

Plots are just like directions or maps they tell you how to do something is like graphical software today that interpolates X,Y and Z coordinates from one point to another and let you plot a path, it does make sense once you look at it, but it should not be granted any privileges because it harms everyone else.

In the past authors could not compete with big publishers, to publish something there was a need for big machinery and a lot of expenses, this not true anymore, today others can compete and everbody can have their slice of the market pie it doesn't make sense anymore to "protect" people like it was done in the past and it doesn't make sense to protect plots either today.

Although this could be very attractive to studios and book publishers and it is based on the same assumptions that others need to come up with new plots.
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Anonymous Coward, 24 Sep 2011 @ 3:16pm

Re: Re: Signed and Posted
To vague, fractals can depict shorelines, how a shoreline forms is software could that theory be patented?

Equations that define how substance reacts can be defined by math, turbulance in fluids can be define by math,

Cell interactions all of those things can be defined by math.

The problem with being to vague is that today it can be used to exclude something but also in the future it could be used to include things if it is ever to change.
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Anonymous Coward, 24 Sep 2011 @ 3:21pm

Re: Is software patents really the issue?
Because with a physical representation of that algorithms or idea you have an infinity choice of materials, that is what makes discoveries of new materials and their use patentable it is hard to find the right combination, not so with programming languages for which you have a few which all translate to a basic language and that is the language a machine understands, there is no search for the perfect combination, there is no difficulty in finding a solutions to that problem and as more and more people get enable by technology so do the cases of people who will violate that monopoly and that is a problem that should be solve by market forces let the best guy who understands how to navigate the market produce something and sell it without being able to stop others.
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Hephaestus (profile), 24 Sep 2011 @ 3:36pm

Re: Re:
"I'm sort of curious who the "you guys" you refer to might be?"

The branch of govt he is referring to is, the one that requires you to have a friend, that hooks you up with a lawyer, that gets you in contact with a lobbyist, that gets your message to the government, that then requires you to fund several politicians, who then give you money to do your own research, and then you are allowed to write the laws they will sign.

Mike I thought you were smarter than that !!! Sorry you were talking about "You guys" never mind.
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Lawrence D'Oliveiro, 24 Sep 2011 @ 7:22pm

Re: Govt Branch
Funny how Marx seems to get all the credit for centralized planning these days, kind of like the way people think Google was the �first� search engine, or Apple made the �first� touch-screen smartphone.

There was central planning before Marx, and unlike Marx, it was oriented more towards protecting existing businesses against new competition. In other words, the kind of central planning you�re looking for is not Marxist, but mercantilist.
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Joe Smith, 24 Sep 2011 @ 9:33pm

definition
Any step or sequence of steps which takes information as an input and generates information as an output and which can be implemented or simulated on a general purpose computing device is software.
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Anonymous Coward, 25 Sep 2011 @ 2:28pm

Re: Re: We hired them
Did you just reply to and disagree with yourself?
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Anonymous Coward, 25 Sep 2011 @ 4:01pm

Re:
Software is NOT an algorithm - it is the software progammer's interpretation of an algorithm expressed in the form of computer program. For example, "bubble sort" is an algorithm with O(n^2) complexity. It specifies a specific way of sorting a list. This, in of itself, is not software. A software developer can implement the bubble sort algorithm in any programming language from machine code for a specific CPU to a high level language such as C, C++, Java, Perl, etc. The implementation is software - not the algorithm.
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RobShaver (profile), 25 Sep 2011 @ 9:39pm

Re: Re: Is software patents really the issue?
Bbbbuuuuzzzzzz. Wrong answer but thank you for playing.

I don't like patents either. But your answer is boooogggguuuusss.

1. "not so with programming languages for which you have a few which all translate to a basic language and that is the language a machine understands, there is no search for the perfect combination, there is no difficulty in finding a solutions to that problem"

Clearly you're not a programmer. Take for example the LZH algorithm used for data compression. I was astonished at how really simple and elegant it is. I never would have tried it because it is completely surprising, at least to me, that it would give you some much compression for so little work.

2. All mechanisms are made up of six classical simple machines. So if your argument that programs "all translate to a basic language and that is the language a machine understands" holds any water then I can say the same for all mechanisms; they all reduce to six simple machines ... just like your description of a computer.
http://en.wikipedia.org/wiki/Simple_machine

In summary, I find your arguments without merit.
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abc gum, 26 Sep 2011 @ 4:52am

Re: Re:
"The implementation is software - not the algorithm."

... and it too should be allowed a patent.
ftfy
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DannyB (profile), 26 Sep 2011 @ 6:55am

An attempt at a definition
A software patent is any patent that would be infringed upon if I were to do something with software, including the case of when that software runs on actual hardware.

A software patent is any patent that would be infringed upon by a machine which consists of a computer running software.
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RobShaver (profile), 26 Sep 2011 @ 7:01am

Re: An attempt at a definition ...
a poor attempt.
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RobShaver (profile), 26 Sep 2011 @ 7:06am

Charles Babbage ...
created a design for a computer using only mechanical parts. No electricity, no electronics. So does it contain software? It does in my opinion.

http://www.i-programmer.info/news/82-heritage/3101-babbage-archive-digitized.html

The line between hardware and software really isn't that distinct.
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Daddy Warbucks, 27 Sep 2011 @ 7:43am

Re: Re: Govt Branch
Yes, central planning was before Marx and I did not give him credit for inventing central planning, but Marx's model of Centrally Planned Markets is what I said Mr. Control.
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Jose_X, 27 Sep 2011 @ 12:26pm

Re: Re: How To Define Software.
A practical layman definition of common software: if you have an existing machine and can give it instructions using "conventional" means, these instructions are the equivalent of software.

This would create one test of sorts that could be used to kill many patents (eg, process patents on computing machines) or at least to restrain their applicability (eg, "fair use").
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nasch (profile), 2 Oct 2011 @ 5:29pm

Re: Re: Re: We hired them
lol, he didn't even post as AC!
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nasch (profile), 2 Oct 2011 @ 5:31pm

Re: Re:
I think almost everyone is aware that congress is the entity that writes and passes legislation in this country.

Sort of. Sometimes. (the writing part I mean)
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nasch (profile), 2 Oct 2011 @ 5:33pm

Re: Re: Patentable Definition
Maybe not that it has to be made, but it has to be possible to "make it".

Why not actually require it to have been made? That may be the only way to be sure you're patenting an invention and not an idea.
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nasch (profile), 2 Oct 2011 @ 5:37pm

Re: Re: Re: Signed and Posted
To vague, fractals can depict shorelines, how a shoreline forms is software could that theory be patented?

Equations that define how substance reacts can be defined by math, turbulance in fluids can be define by math,

Cell interactions all of those things can be defined by math.

Are you arguing that shorelines, turbulence, and cell interactions should be patentable? Because if not, I don't understand your objection.
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nasch (profile), 2 Oct 2011 @ 5:50pm

Re: Is software patents really the issue?
I'm not sure what exactly should be done about it, but software is AFAIK the only thing that can be covered by both copyright and patents. It seems we should choose one or the other, unless someone can demonstrate really clearly how allowing both benefits society and promotes progress.
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patent litigation, 16 Oct 2011 @ 3:48pm

clever drafting
Certainly, clever claim drafting can be the decisive factor as to whether or not an invention is categorized and patented.
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