[Patents] invention and discovery

[John Tobey jtobey@john-edwin-tobey.org]

"antonio abrantes" <antonio_abrantes@hotmail.com> wrote:

>  As Greg Aharonian said: "Both took equal amounts of brainpower to 
> develop, and
> similar amounts of time and cost of equipment needed.  I see know
> reason why my inventiveness with the circuits should be rewardable
> with a patent, but not my inventiveness with the software"

This fallacy has been used too often in defense of software patents.
The program and the circuit did *not* take equal amounts of
brainpower, time, and cost.  Let me explain.

The effort that goes into a software implementation like Amazon's web
site is quite different from the construction of a factory:  It
involves no risk, and its completion gives no benefit to society.
Only the patent-bearing *idea* of the software deserves to be
considered when comparing research/development costs.  As PILCH
Hartmut has observed, the core idea seldom requires more than an
afternoon on a train.  (In the case of Amazon's one-click idea, five
minutes' discussion with any experienced web user should have
sufficed.)

With inventions that use new knowledge of natural forces, one can
never be sure whether one's effort will be rewarded until the factory
is in production; i.e., until the invention has been proved to work in
practice and to be efficiently manufacturable.  The act of "building
the factory" entails risk to the factory builder and, when successful,
benefits society by creating the knowledge that it can be done.

With pure thought-based inventions (such as improvements on
algorithms), the knowledge that it can be done is completely present
at a very early stage.  It may take a lot of time and money to
implement the idea in a commercially useful way, but no knowledge is
created by such work, and there is no chance that the logic of the
"invention" will mysteriously fail to function.

Greg Aharonian is fond of describing the similarities between
designing logic circuits and writing software that performs the same
logic.  How, he asks, can we say that one kind of output should be
patentable and not the other?  Well, neither one should be patentable
if he is really just writing the code and turning a crank to produce
the hardware.  I'd be surprised, however, if he never edits the
circuit designs coming out of his codesign tools to fix shortcomings.
I am told that generated hardware designs must be fixed up by hand in
order to work in practice.  Presumably even the patched versions
sometimes encounter problems once they're built.

I have one rule by which to judge software patent laws.  If, by my
giving you a sequence of bytes, I might infringe a patent, then the
law must be changed.

-John

-- 
John Tobey, late nite hacker <jtobey@john-edwin-tobey.org>
\\\                                                               ///
]]]             With enough bugs, all eyes are shallow.           [[[
///                                                               \\\