[Patents] Report on software patents.

[Xavier Drudis Ferran xdrudis@tinet.org]

Gregory Aharonian va escriure el Mon, 11 Dec 2000 20:13:01 -0500 (EST)  :
>
>Hartmut's proposal contains the following phrase arguing against
>"non-technical" computer programs (a concept that has no meaning
>in America):
>    I.e, the solution of the problem must lie in a technical realm
>    beyond the realm of programming, and the exclusion rights
>    derived therefrom must be directed to material objects outside
>    of the program, such as e.g., chemicals or automobile engines.
>
>Reading this, I conclude that Hartmut's proposal would ban a 
>patent on a new sorting algorithm by itself, but not a new sorting
>algorithm applied to a chemical process or automobile engine control.
>The sorting algorithm by itself, I understand from Hartmut's words,
>is solely within the realm of programming, and therefore not
>patentable.
>
And the sorting algorithm applied to a chemical proces, etc. is also 
non patentable. At least I understand it so. You have to invent 
something new in the chemical process. If that something new requires 
a sorting algorithm, then you use one that you invent or an already 
existing one, and implement it with a computer program if you like, 
that won't help or hinder your patent, 
but since what you got the patent for was some new chemical process,
you don't stop anyone from using your sorting algorithm for anything. 
If somebody wants to do the same chemical process that you patented, 
they can't because of your patent, if they want to apply the algorithm 
to something else (even a different chemical process that does not use
your chemical patented invention) then they can. What is new is not 
the algorithm, is something else in your chemical process (something 
else not excluded from patentability). 


>If indeed that is Hartmut's view and proposal, then I argue that it
>is both a scientifically inefficient philosophy for patenting, and
>a patent law argument that failed in the United States.
>
That a system of law failed somewhere is no reason for it to fail 
anywhere else. Otherwise, be could dispense with our legislaive power
and simply photocopy US law (unless US law itself is patented, of 
course ;op ). 

It is my personal view, that even if we were to copy a law idea from 
somewhere, countries with such a crappy law system as one that allows 
the death penalty shouldn't be cosidered. So when I hear that something 
is a good idea because it is in US law, I must struggle to ignore it and 
concentrate on real reasons if any, or else I would discard it 
automatically for coming from such an unethical law system.
Please don't take offence. There are many wrong things with the European
law as well.

>Why is it scientifically inefficient?  When someone comes up with a
>new algorithm, such as a new sorting algorithm, I as a scientist or
>engineer could care less about its applications.  Finding applications

True. If it is an algorithm that you discover, you shouldn't be able 
to patent it, wherever you care to apply it. If it is something else
then maybe it can be patented.

>
>These same arguments occurred years ago in the United States (in
>fact, most of the discussions going on in Europe now about software
>patents went on in the US courts from the late 1980s to the late
>1990s - and the outcome will be the same).  People argued that
>computer programs by themselves were pretty much math equations
>within the "realm of programming" (I prefer the realm of Guiness
>Stout).  The courts shot down most of this logic, and the lawyers
>just added useless real world examples (and irrelevant descriptions
>of hardware to the claims) to the specifications to satisfy the
>courts' rulings and the wishes of people like Hartmut to make sure
>software patents have a real world focus.
>
US courts rule things like a microwave oven manufacter is guilty of not 
specifying that you shouldn't use the microwave oven to dry a live 
cat after a bath. Allow me not to listen too much to US court decisions. 
Allow me not to listen too much (not to generalize) even to European 
court decisions, I'm no lawyer, but I believe that jurisprudence is much more
important in USA than in Europe. In Europe we care more about law than 
court decisions, and in the USA court decisions have more weight. Is that 
right?

Give me arguments (from those court decisions or from elsewhere) and 
we'll talk, but not "authority criteria" (I think this is not the proper
English for it, sorry, I mean that pseudoreasoning that implies that 
something is true because someone knolewdgeabe says it regardless
it is sustained by logic and facts).

Again. We're not saying computer programs with an application in a 
technical area are patentable and without that application not (that
is more or les what has been doing the EPO, and obviously any computer 
application has some application in a technical area if you care enough 
to seek it). We want computer programs
no to be patentable at all. And that is no impediment for some other 
thing to be patented even if they require software.

>In the end, the software patents still issued, though at a greater
>cost to patent applicants.  And much like in Europe, while everyone
>was arguing these philosophical issues, no attention was made to
>improving the examination process (in particular searching) so that
>all of the idiotic types of software patents we all hate wouldn't
>issue.
>
I'm curious about how would you devise a system that improves the 
examination process, but it has little to do with our discussion:
software patents. We are still arguing that we don't want software 
patents, even the ones that would pass a good examination process 
if there ever would be one. Because even those software patents 
would be counter productive, so we don't want them.

Honestly Greg. I don't know if you don't understand what you read,
or you just want to distract people attention from the real issue 
(although you are right that the examination process for all 
patents should be improved). In either case, you are not helping 
software patents survive, because people that reads this discussion
may easily conclude that if the best arguments pro software patents
are the ones you give, then there are no arguments pro software 
patents.


--
Xavier Drudis Ferran
xdrudis@tinet.org