Re: [Patents] newsscan: Software patent limits 'go too far'

[Russell McOrmond <russell@flora.ca>]

On Wed, 22 Oct 2003, Bernard Lang wrote:

> The point is : there are not equivalent

  Please detail from a Legal or Technological point of view how they are
not equivalent.  How does it matter if programming is interpreted by a CPU
at run-time or whether programming is burned into an FPGA?

  I also disagree that the economics are different, but that is a
conversation we don't need to get into as the economic situation of each
isn't really all that relevant.  Some engineers (and/or their employers)
say that the economics are different, but then again some engineers in the
"software manufacturing"  lobby say that the economics is the same (and
that any methodology other than "software manufacturing" such as FLOSS
doesn't exist, that the earth is flat, that...), so why bother focusing
only on these arguments?

Note: I am not at all suggesting that the economics of hardware and
software are the same.  What I am suggesting is that the programming of an
FPGA is software, not hardware.  As more and more hardware becomes 
programmed with software then things which people think of as hardware 
must be treated more like software (and not the other way around -- 
software should not be treated like hardware).

  When there are no longer innovative processes by which physical hardware
is built because all of the innovation moves to programming, then there
should be far fewer patents granted as only the processes used to produce
physical hardware should be patentable, not any programming of
pre-produced hardware.  Two differently programmed FPGA's are the same
hardware that were manufactured using a single (possibly patented)  
process.

> The role and justification of patents is economic.

  The economic justification used by the United States (to further the
arts and sciences) is just one thread seen in the world.  There is also
the rights-based justification:

  Article 27(2) of the United Nations Universal Declaration of Human 
  Rights says:

    Everyone has the right to the protection of the moral and material 
    interests resulting from any scientific, literary or artistic
    production of which he is the author.


  I for one am not debating whether an inventor should receive the moral 
and material interests resulting from an invented process.  What I am 
debating is what constitutes moral and material interests, and what 
constitutes an invention.

  Two otherwise identical computers programmed differently, or two
otherwise identical FPGA's programmed differently, can not represent
different invented processes.  Information processes or other
non-manufacturing processes do not represent inventions, a private citizen
(outside of a manufacturing process)  creating the same outcome should not
be considered in violation of a patent, and so-on.

> Patentability is there if it encourages investment is innovation,
> disclosure and industrialisation. The economics of hardware and software
> are different, even though functionality may be the same.

  Patent laws are acts of parliament that are interpreted by judges, not
economists.  The purpose of law is to create stability and certainty: you
should know when you are breaking a law and when you are not.  Economics
is anything but stable or certain.

  While economics plays a very important roll in the justification for
patent law, and is critically important for creating such laws, it can not
play a useful roll in the interpretation of existing law.

> Would you ask turkeys whether thanksgiving is a good idea, or
> shoemakers whether walking barefoot is a good idea.  Don't ask Greg?

  It is a given that there are vested interests in this discussion, and
not just from one side.  We need to move beyond that to determining what
makes good public policy and how to enact laws that will help create
certainty.  Even at this stage with the recent developments the legality
of software patents is uncertain in Europe, and thus the law is still 
flawed.

  It should be simple to state that while the existence of software within
an otherwise patentable manufacturing process does not make the process
unpatentable, that software alone can not represent a patentable process.

  There are many ways to try to say this including the "as such" and
"technical requirement".  Until patent offices and patent courts agree
with other patent policy makers that software alone should not be
patentable then software alone will remain patentable.

  Complaining that by our interpretation software should not be patentable
in Europe is not helpful given that European patent offices and courts
seem to disagree and it is their interpretation (and not ours) that
matters.  We need to continue to push to enact laws until such point as
patent offices and patent courts interpret the law as intended.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/