Crazy Idea Of The Month: Allowing Patents On Mathematics
from the aren't-things-bad-enough? dept
It would be something of an understatement to say that people have strong opinions about patents. But as Techdirt has reported, there's a growing consensus that software patents in particular aren't working -- James Bessen and Michael J. Meurer have written an entire book, "Patent Failure", about how bad things are there, and why it's happening in this area rather than elsewhere.
One of the key problems is that software patents are essentially patents on mathematical algorithms -- sets of instructions for carrying out a calculation. Since it has long been a principle that you can't patent mathematical formulae or laws of nature, there is a tension there: if software is just mathematics, why should you be able to patent it at all? New Scientist points to an interesting article in the April 2013 issue of Notices of the American Mathematical Society, in which David A. Edwards
proposes a radical way of solving that conundrum (pdf):
At present, only those things which are made by man are patentable. Thus, the courts have allowed new forms of bacteria which have been engineered to have useful properties using recombinant DNA techniques to be patented but would not allow such a bacterium to be patented if it were naturally occurring even if it were newly discovered. This is the basis for the nonpatentability of computer programs. They are algorithms, which are essentially mathematical formulas, which -- as everyone knows -- are "eternal" and hence discovered by man and not created by him. This argument which, to say the least, is philosophically controversial, leads to our present unfortunate policy. From an economic point of view, there is no rationale for distinguishing between discovery and invention, and we would advocate dropping entirely any subject matter restrictions whatsoever on what can be patented. One should be able to patent anything not previously known to man.
In particular, he believes it should be possible to patent mathematics, and hence software.
One of his arguments is that this would spur people to make more discoveries. But that presupposes mathematicians aren't trying to do that now for glory, peer esteem and tenure, but there's no evidence to suggest that. The same argument is sometimes made in support of software patents -- that they stimulate the production of more software. But that overlooks the fact that the computer industry thrived for decades before the introduction of software patents, and that companies like Microsoft grew into hugely profitable enterprises without them.
Indeed, in 1991 Bill Gates famously warned about the problems that software patents would create for the industry and his company:
In a memo to his senior executives, Bill Gates wrote, "If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today." Mr. Gates worried that "some large company will patent some obvious thing" and use the patent to "take as much of our profits as they want."
That, of course, is exactly what has happened since the introduction of software patents, leading to the following situation today:
In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years -- an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.
That's bad enough for huge companies with deep pockets; it would be even worse for universities on tight budgets which might suddenly find themselves sued for using mathematical formulae without permission -- a ludicrous situation. Edwards seems to be aware that this is a problem, and tries to address it as follows:
Since patents only give control over the commercial applications of his or her discovery or invention to the patentee, granting patents on mathematical formulas, laws of nature, and natural phenomena would have no negative side effects on pure science.
That's not really the case, in the US at least, thanks to Madey v. Duke University,
as Wikipedia explains:
In 2002, the Court of Appeals for the Federal Circuit dramatically limited the scope of the research exemption in Madey v. Duke University, 307 F.3d 1351, 1362 (Fed. Cir. 2002). The court did not reject the defense, but left only a "very narrow and strictly limited experimental use defense" for "amusement, to satisfy idle curiosity, or for strictly philosophical inquiry." The court also precludes the defense where, regardless of profit motive, the research was done "in furtherance of the alleged infringer's legitimate business." In the case of a research university like Duke University, the court held that the alleged use was in furtherance of its legitimate business, and thus the defense was inapplicable.
Clearly, there is huge scope for inventive lawyers (mathematical trolls?) to bring lawsuits against academics here, which would inevitably have a chilling effect on "pure science". Far from helping resolve the problems we have today with software patents, extending patentability to the mathematics that underlies programming would simply spread the misery wider, and make the lawyers richer.
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Filed Under: david edwards, innovation, math, patents, software patents
Reader Comments
The First Word
“No really, it's impossible because the formula is patented.
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It just takes a small historic analysis to see that scientific development only thrived because there was freedom to build on whatever. Intellectual property makes bright minds spend energy with legal issues that were not there in the past.
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It just takes a small historic analysis to see that scientific development only thrived because there was freedom to build on whatever. Intellectual property makes bright minds spend energy with legal issues that were not there in the past.
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I can see out now...
But if he could have patented math for the calculus equations he kept in his drawer, I'm sure he would have. He would have also claimed that only he knew how derivatives worked.
Honestly, Newton isn't getting any richer off his discoveries. Why should anyone else get rich off of patenting math?
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Re: I can see out now...
Because, if people can learn math for cheap or free, why would they bother to learn anything new?
Did I get the typical troll logic right?
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A little late
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Re: If all discoveries should be patentable...
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To me, this means the lessons we learn from how bad patents are for software can be applied to other areas as well.
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good maths :D
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Funny
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What Bill Gates means is HE would have had to PAY THE CREATORS!
First, NO it wouldn't, Microsoft could have licensed the patents, and there'd have been more equitable distribution of the rewards.
Instead of Gates getting income from all the wonder that he did NOT invent. Gates alone probably got more from the computer revolution than ALL the engineers of the entire 20th century who developed the essentials. Far as I know, Gates didn't invent ANYTHING, just adapted what was already extant. So it's no wonder that HE'S against patents.
Now, that doesn't mean I'm for software patents. Two items will cure it: disallow software patents and steeply progressive income taxes to limit how much second-handers like Gates can get.
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Mathematical sarcasm
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Yeah, this isn't even close to how awesome that failure was.
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No really, it's impossible because the formula is patented.
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Re: I can see out now...
Gottfried Wilhelm von Leibniz? ;)
Thank God there weren't math patents back then because both Newton and Leibniz had access to earlier developments on that field. None of them did anything entirely novel. And all that was possible due to early 'inventions' from René Descartes. And what did Descartes do? Put damned axis in 90° angle and called them abscissa and ordinate axis. Genial and yet obvious if you think about it. Ideas should never be patented. Ever. Executions maybe.
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Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
Because everybody has deep pockets and plenty of time and energy to worry and deal with a broken system right?
Instead of Gates getting income from all the wonder that he did NOT invent... Gates didn't invent ANYTHING, just adapted what was already extant.
Tell me how it is a bad thing to get something and adapt so people can easily and efficiently use. Thanks to the fact that it wasn't that bad back then he managed to do it. Ironically Microsoft is among the huge corporations that run around suing and putting awesome startups out of business with patent law.
Two items will cure it: disallow software patents and steeply progressive income taxes to limit how much second-handers like Gates can get.
Nice, the rest of the comment seems to be an attack on the article. You are incoherent. Other than that I agree with disallowing software patents (and probably most patents) but steep taxes alone won't do a thing other than make companies go to where the taxes are lower.
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Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
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Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
Did you invent your clothes, did you invent your fork and knife?
Did you invent anything you use to make a living?
Most importantly do you pay royalties?
No, then you are are a parasite aren't you?
This according to your own ludicrous line of reasoning.
Also why do you keep creating content for Techdirt, did you get paid to do so, why do you do it if you don't get paid?
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Re: Re: I can see out now...
Given that the US patent system is first-to-file, not first-to-invent, Newton would have been completely out of luck if he'd tried to patent the calculus. On the other hand, academia is already first-to-publish and not first-to-discover, which is why we call it the calculus and not the "fluxions".
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Re: Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
You remember the 60s, don't you? NASA, great employment, booming economy, manufacturing plants all over America, no call centers...
I don't remember companies moving overseas back then. That didn't start until the late 70s. Companies WERE starting to move west and south in America by the end of the 60s because they were trying to shed unions, but that was just more greed. It didn't have anything to do with the tax rate. Companies were focused on a skilled labor force back then. Now it is just warm bodies.
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;-)
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Re:
Not strictly true - see
http://quixoticquisling.com/2009/01/penroses-patent-and-the-battle-of-the-tissue-tiles-contai ns-mathematics/
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Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
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Re:
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Lying Collectivists argument
(Except that Newton guy…)
The Collectivists rely on two implicit premises which they dare not make explicit.
1. "If you do not create everything, you create nothing."
(Since Thomas Edison didn’t discover electricity, invent glass, learn how to forge metal, and devise language, he didn’t invent the light bulb.)
In fact, creation is precisely the re-arrangement of materials into a new and more valuable form. Building is precisely the assembly of pre-existing materials to form a structure that didn’t exist before.
2. "When an alleged creator pays for the goods and services of other individuals, he has actually stolen them from that anonymous collective which is “society.”
(The artist who buys his pigments in an art-supply store has actually appropriated them from “society” –including the welfare recipients he is taxed to support.)
In fact, an individual owns the goods and services he acquires in voluntary trade with other individuals. The services supplied by government...public “education” -are funded by taxes paid for by individuals (and almost half of “society” pays no income tax).
Truth: The knowledge a creator uses was discovered by specific individuals, not by “society.” There is no collective discovery and society has no brain."
http://www.forbes.com/sites/realspin/2012/08/05/revenge-of-the-zeros-the-battle-between-a yn-rand-and-collectivism-reaches-a-climax/2/
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Illegal numbers
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Re: Re: Re: I can see out now...
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Re: Re: Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
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The maths student will hate him
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You cant patent E=MC2 but you can patent the design of a nuclear power plant, you cannot patent "water" but you can patent a type of steam engine.
cant patent a circle (a mathematical entity) but you can patent a type of wheel that happens to be a circle.
You cant patent software, but you can patent a process or design or machine that is comprised of software.
you cant patent wood, but you can patent the design of something that is made from wood.
you patent a METHOD of doing some function, not the function itself.
therefore you patent a method of turning steam into motive power, you do not patent steam, or the generation of power.
it's amazing how poor an understanding of what a patent actually is displayed here, it's a shame coming from a web site that professes to know better.
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Re: Re: Re: I can see out now...
just like the person who invented the petrol engine and the person who invented the steam engine could both patent their methods of achieving the same results.
you don't patent the function, you patent a method of achieving that function.
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Re: Re: I can see out now...
actually they BOTH did something entirely novel, they both developed different methods to achieve a function, both could have patented their separate methods.
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Re:
Then you'll be happy to learn that is EXACTLY what a patent is, it is the EXECUTION of the idea, the METHOD if you like of the idea.
The idea is (might be) "I want to catch or kill mice" you cant patent "I want to catch mice". But if you invent a method to execute your idea, you can patent that method.
No one patents idea's you cant patent an idea, you also cant USE an idea, ie, "I want to kill mice" is great as an idea goes but unless you actually DO SOMETHING with that idea it's NOTHING.
Do you honestly believe IDEAS are patented ???? read a patent one day, or even two.. Check out how you go about getting a patent issued, the process that is involved.
You might be able to work out then that idea's of themselves are nothing, it's the application of an idea and it's method of application that is what IP and patents are all about.
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Re: Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
all because people like blue and yourself, even though you did not invent something has a much higher quality of life because someone else did.
Gates pays license fees for the patents he himself did not invent, he also makes a lot of money by creating a market where many, many other people can create wealth, income, or function from the things that have made bill gates a billionair.
So if you run a small computer shop, you make enough money to own your house, feed your family you are making a living off someone because someone else was willing and able to use patents to provide you a valuable service or product or market.
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Re: Lying Collectivists argument
Edison did not invent the electric light bulb, he invented A METHOD OF GENERATING LIGHT USING ELECTRICITY.
A method not THE ONLY method.
His "idea" was "to turn electricity into light" he did not patent that idea, you cannot patent idea's, and idea's (without application of a method) IS NOTHING.
Generating light from electricity can be reduced to mathematics, watts, volts, amps, lumens, degrees, power and all be expressed in formula's. Edison also did not patent ohms law, or the equations of ohms law.
He did not patent the idea of "electricity to light", or the light bulb, or the natural physics and maths that applies to electricity and light, he just invented A METHOD for producing light using electricity.
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Re: Re: Lying Collectivists argument
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Re:
Think about the fun that will ensue. Injunctions against delivering energy unless they pay a seriously over the top licencing fee.
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Re: Illegal numbers
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Re: Illegal numbers
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Re: Re: Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
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Re: Re: Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
Not to mention something called Vietnam, massive protests, presidents assassinated, being beaten into outer space by the Russians, Cuban missile crisis, and almost the destruction of the human race, oh yea, The Bay of Pigs, assignation of Martin Luther King, African Americans given the vote !!! Cold war with Russia and china, skate boards and yo-yo's, Mr Ed and "bewitched"
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Re: Re: Re: I can see out now...
Just because two descriptions look different does not mean that they describe a fundamentally different method.
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Re: Re: Re: Re: I can see out now...
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Re: Re: Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
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Re: Lying Collectivists argument
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Re:
Once you start patenting 'nature' that you have discovered, then you really open up major cans of worms - just look at the mess there is with medical diagnostics. Great, so there's a cure for a form of cancer - but the cancer, the diagnostics and the cure are 'locked up' and no-one can 'improve' on them because that's "felony interference with a (poor) business model".
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Re: Re: Illegal numbers
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Re: Re:
But if you build a computer program that works like a calculator, people can patent a "system that performs mathematical calculations with a button interface". That's ridiculous, because the patent covers all program designs that fit the definition, not just the program that was developed.
Like the Anon says, you shouldn't be abled to patent an idea. Like Niall says, it's happening right now.
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Re: Re: Re:
no, if anything, it would be a "A method for performing calculations by electronic means"
I would not have used the example of a calculator, because a pocket calculator is a microprocessor running software. A computer is a microprocessor running software.
you cannot patent 'a calculator' for the exact reason why you cannot patent "A steam engine" or "electric light".
You would or could of course A METHOD OF GENERATING POWER BY USING STEAM, or a "Method of generating light using electricity.
As you would patent "a method of performing calculations using electronics and software".
Every software program can be realised in hardware, that means all software functions can be created using discrete logic like AND, OR, NOR gates. And often is, still is. It IS THE METHOD of achieving a result that you patent, not the application and not the idea.
Remember the arcade game "space invaders"?? The "software" or "program" to create that game was not a CPU running code but was a large board full of 74xx logic chips, used to create that game.
this shows that all software can be realised in hardware, and often is. Is an ISIG hardware or software ?
Is a CPU hardware or software ?
when it comes down to it, there is no distinction between hardware and software in a computer system, therefore there is no reason to separate hardware and software because of patents, because there is no real distinction between either one, and can use the same METHOD regardless of it it's considered hardware, software or firmware.
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Re: Re:
You do not patent steam, you patent "A method of using steam to generate power".
Patents like everything that exists require the natural laws of physics for them to perform their specific function, all electric lights follow the physics laws known as Ohms law, you cannot patent those natural laws as they ARE NOT A METHOD TO ACHIEVE A RESULT, but they are the natural physical laws that all things electrical obey. They (rightly) cannot be patented, no more than E=MC2 does not show you how to build an atomic bomb or nuclear power station.
So rightly natural laws cannot and are not patented, because they do not meet the requirements of being "A method of doing something"
SO you can discover natural laws, and underlying physics but you cannot patent those laws, nor do those laws lead you to (necessarily) to invent a method using those laws to achieve a method.
Mr Ohm who discovered ohms law, was no closer to applying that knowledge to the development of the electric light or the method of generating light by means of electricity that is governed by the application of the math of Ohms law.
software is not just the application of maths, it is a method of achieving a specific function using continuously configurable hardware switches. Just as a nuclear power station is not 'just' the application of E=MC2.
You do realise talking about electric lights and switches that your humble room light is a digital computer, a very simple one, but a computer all the same. Yes, it's only a 1 bit binary adder, but with switches and lights you can create a computer that runs "software" (that is actually the position of the switches (the real, physical switches, or relays) performing "SOFTWARE". Not just a mathematical function, but a method or achieving the desired result.
In fact I am sure there is no one on this web site who could turn even the most simple of computer programs into an equivalent mathematical equation.
If you were to intend to make that claim in a Court of law, then you probably would be required to prove your claim that "software is only equations".
Ok, if they are only equations get a include file from a Linux distro, and convert that software into a mathematical equation !!!!
If you understand Boolean logic you know you can turn software into a form of equation but that means you can also realise the Boolean logic in hardware.
but that means nothing regarding it's patentability, you can realise an electric light using physics and ohms laws equations as well, but that does not create a light bulb.
you can create software into equations (with great difficulty, to impossibly for anything requiring indeterminate input data, (such as human interaction). But the equation alone will not make your computer work or your function realised. But your patented invention might.
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Re: Re: Re: What Bill Gates means is HE would have had to PAY THE CREATORS!
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Re: whole genome shotgun sequencing
http://www.uspto.gov/web/patents/patog/week44/OG/patentee/alphaD.htm
you don't think this mathematical method has not made it's inventor and the genome industry in general billions of dollars (or saved billions of dollars).
Do you think "Complete Genomics" have not made a great deal of money, by making the sequencing of DNA vastly faster and more efficient?
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Academic Compensation
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Re: Re:
He should stick to making superbly entertaining and mildly explosive laden cuckoo clocks....
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Re: Re: Re: Re:
Well, there is a patent for the Linke button. There's a patent for a "Dynamic progress marking icon" (progress bar), a "Method and system for placing a purchase order via a communications network" (one-click buying) and an "Internet test-taking method". See more here: https://www.eff.org/patent-busting
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Re: Re: whole genome shotgun sequencing
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Re: Re: Lying Collectivists argument
Quick science experiment:
Take a bit of steel wool and a small 9 volt battery, and stick the nodes to the bulb in a vacuum environment. Burns really quickly. Try it with Tungsten filament...lasts for days in a vacuum :-)
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Crazy but Cool!
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Crazy idea of the math
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Crazy idea of the math
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Crazy idea of the math
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