Re: [Patents] philosophical aspects of software patents

[Seth Johnson <seth.johnson@RealMeasures.dyndns.org>]

fred.boutet@wanadoo.fr wrote:
> 
> The debate on software patentability also addresses old philosophical 
> questions :
> are computing machines intelligent ? Can we think of making software 
> applications
> patentable withtout asking what represents these applications for humans 
> and for
> the european society ? If programmed machines are intelligent, can we patent
> intelligence ?


Actually, philosophy has continually held out *consciousness* as such, not
intelligence per se, as fundamental grounds in some of the most important
ways -- phenomenologists, for instance, elaborate upon the absolute
certainty involved in the phenomenon of consciousness.  The point being that
certain things are absolutely certain, such as logic and the fact that one
is experiencing (even if *what* one is experiencing is illusion).


> Alan Turing (1912-1954), english mathematician philosopher contributed to 
> these
> questions by publishing in 1950 the famous article {Computing Machinery and
> Intelligence} in {Mind}. As part of his argument Turing put forward the 
> idea of an
> 'imitation game', in which a human being and a computer would be 
> interrogated under
> conditions where the interrogator would not know which was which, the 
> communication
> being entirely by textual messages. Turing argued that if the interrogator 
> could
> not distinguish them by questioning, then it would be unreasonable not to 
> call the
> computer intelligent.


He is correct that it would be unreasonable not to call the computer
intelligent, though the sense most people have of the term, that
intelligence is the manifestation of a "lived experience" or consciousness
looking on and expressing itself in intelligent form, would be modified once
that usage of the term came into general practice.

> 
> When a Member of the European Parliament (MEP) studies an invention 
> controlled by
> a program (the ABS break system or the mobile phone), he or she may think 
> that the
> software application is intelligent, that it is new and that it contributes
> significantly to the state of the art in the technical domain. Hence, the 
> MEP may
> be favorable for the software application to be patented. This vision may be
> partial but this is the main argument for those writing the proposal.


I see what you're driving at.  It's likely that a good bit of the problem is
in fact this sort of "magic thinking."  It's like the application provides
such a change in people's capabilities, that some people think just for that
reason, it must be worthy of being given a patent.  Plus you're saying that
the mystification involved would in some cases include a notion that the
application is intelligent.

If someone does get this mystified idea, it might be relevant to point out
that intelligence as such is not appropriate for patent coverage.


> However, the software application only imitates the human reasoning. In the 
> case
> of the ABS break system, the joint reasonings of the physician, the 
> mecanician
> and the mathematician constitues the invention and therefore constitutes the
> argumentation for the patentability.


Yes.  In fact, the strongest way I've found to describe the problem with
supposing that we might actually make machines that are *conscious* (not
"intelligent" per se), in some occasional more philosophical discussions
(not often connected to SW patents) I've had about computers, is just to say
that whatever system you devise by which you make the machine behave in an
intelligent fashion (which I think is completely possible, and definitely to
the point that turing describes), all I need to do is ask to see the
algorithm, and then point at it, saying "Okay, at what point does the
machine executing this algorithm actually become aware of the way it
represents awareness?"


> The embedded software application is a text
> that can be read by the computer architecture and that implements the three
> scientist reasonings. In no way, the software programmer can pretend being 
> at
> the beginning of the invention.


I don't know exactly what you're talking about here.


> Let us take another example: the chief of a clothes-making plant. His role 
> is to
> pilot the employees to meet the production expectations. When a new 
> employee comes
> for example, his role is to tell him/her the instructions for working.
> 
> Let us imagine that we plan to replace this chief by a machine driven by a 
> computer
> program. All employees, including the new ones, will speak to the machine 
> for any
> instruction or problem during the work. The chief wants the plant to 
> continue in
> the right way and will be severe for evaluating the machine. He will say 
> that the
> machine is intelligent and acceptable if it can do as much as he can do. If 
> this
> is the case, no doubt that the chief will be impressed by the machine.
> 
> If we let this machine to be patented, then the chief could patent his way 
> of
> managing the plant since the machine does exactly what he does. But would 
> it be
> normal to patent a way of working ? It seems that our culture excludes this
> possibility of patent. If the chief wants to reuse his skills, he can write 
> a
> book describing them and get the money of copyright. Never we would think 
> that
> he would patent his way of working, being able to prevent other people to 
> apply
> his method. Do we want the human intelligence to be patented ? I guess no.


The whole tradition would presumably be against any such thing.

However, in the United States, the current thinking since the State Street
decision, is that ways of doing business can be patented.

But I think the political circumstances are starting to change, such that
the error in this decision is starting to dawn on people again.  It's kind
of hard to describe why we ever thought that business methods weren't
appropriate for patents -- it's basically the idea that you want people to
be able to go into business, and the premise of the old world is that that
involves setting up a bricks and mortar shop.  Patenting methods of doing
business was pretty plainly a problem in that world.  But in the information
age, the premise has changed to the idea that the stuff of doing business is
largely innovations in business methods implemented in information
technology.  Weirdly enough, in the State Street decision, the court stated
that even though there are many, many decisions alluding to criticisms of
business method patents, there were no decisions that made that the key
reason for their decisions against such patents.  Hence, there was no
restriction on business method patents.

One thing I would say about this is that the State Street decision exhibits
the failure to address the fact that algorithms are information *as such,*
and that part of the reason business method patents are inappropriate is
that they are information, not the sort of thing that we should provide
exclusive rights to manufacture.


> It goes the same way when talking about software applications in general 
> and without exception. What should be done is recognizing the fact that we 
> do not want to allow patents on human reasoning, or human intelligence. 
> Since software applications only imitates human reasonings, no line of of 
> code in any program should be patented.


Yes.  One good thing about this point is that really, there is lots of legal
precedent for it.  But it's the sort of argument that you basically need to
just be sure to express continually along the way, until the forces
controlling things shift to such an extent that finally it registers. 
There's a strong motivation on the other side, to try to solve the problems
that have been created for the exclusive rights tradition by information
technology, in any way they can *other than* facing up to this.

Seth Johnson



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