Re: Patents -- What is the distinction?

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

For IP.


You know, Dave, the reason why there's so much talk about software patents
right now is because in Europe they are not legal and there is presently
very successful opposition being kicked up to efforts to make them legal.

In Europe right now, the EU Commission has been trying to tell the public
that they are not trying to allow patents on software "as such," while at
the same time trying to pass a Directive making "computer-implemented
inventions" patentable.

Incidentally, I'll tell you the reason: it's just because their key
performance indicator for "innovation" under their "Lisbon Strategy" for the
European Union, includes a simple count of "patents!"

A patent on software in a device is a patent everywhere.  This is because
software is abstract, and that's what happens when you patent abstraction. 
Making software in a device patentable, is not in any way different from
making software patentable.

It's not just because that's what a patent is, and patents are an
unvarnished good.  An abstraction is a general rule by its very nature,
freely available for anyone's use.  A patent is a rule under the law.

In 2000, the European Patent Organization tried to take the provisions out
of the European Patent Convention which state, among other things, that
computer programs cannot be patented, but they failed.  So now the EU
Commission and other parties in the European patent establishment
bureaucracy are trying to draw deceptive distinctions between
"computer-implemented inventions" and "software as such."

They're actually trying to pass a law to accomplish one thing while publicly
professing that it's doing the exact opposite (not allowing patents on
software "as such" or "setting clear limits on patentability" or "preventing
a slide toward US-style software patents" -- all abject nonsense, but
exactly what's being said by the proponents of this Directive).  Every time
opposition kicks up, they add fake qualifying clauses and make public
pronouncements saying that the Directive will not allow patents on software
"as such."

This "how do you distinguish hardware and software" line is an analysis that
indirectly emphasizes "protection" rather than the fact that patenting
abstract instructions given to a generic logic device is an absolute
impediment to innovation.  This is not to speak of questions regarding
freedom and a certain kind of understanding which people have been
encouraged to forget of late.

It's not that you can patent hardware, but you can't patent software; it's
that you can't patent abstraction.  The nature of the medium in which you
express your ideas makes no difference.  A specific kind of hardware, the
generic logic device, has brought about the existence of software, the
ability to code such a machine in those terms.  The generic logic device
provides abstract logical functions that may be directed by sequences of
instructions which are themselves inherently abstract.  The reason not to
patent software is because it's abstract -- it's logic!  Whatever level
language you use and whatever medium you express it in, it still translates
into logic.  Code is certainly embodied in all sorts of physical forms, but
it is a representation of abstract ideas, just as surely as written
mathematical calculations are.

Note that right now, in Europe, individual computer users may hold that the
presumption of the law is expressly on their side, that they may program
their computers without regard for the ridiculous prospect that someone may
claim a patent on the logical algorithms that they thereby express.

It's a surprise to me the way this question about distinctions has cropped
up on your list, which is generally focused on US policy.

Observe as well that it's the EU Commission and other proponents of software
patents in Europe who put the question in terms of misguided distinctions,
without specifically taking the pains to address the nature of the subject
on its own terms.

The FFII has a lucid page on what's going on:
http://swpat.ffii.org/log/intro/index.en.html

The following (by me) puts things very bluntly:

http://kwiki.ffii.org/SwpAbst040814En


Seth


David Farber wrote:
> 
> Begin forwarded message:
> 
> From: Brian Thomas Sniffen <bts@alum.mit.edu>
> Date: August 16, 2004 3:04:18 PM EDT
> To: dave@farber.net
> Cc: tom_gray_grc@yahoo.com
> Subject: Re: [IP] Patents -- What is the distinction?
> 
> You're absolutely right that you should be able to patent your
> machine, including the software inside.  What most people complaining
> about software patents are talking about would not interfere with that
> -- they (well, we) have a problem with a different type of software
> patent.  As a couple of examples, there was a patent on using the RSA
> algorithm to secure data.  That was fine.  There's a patent on use of
> the LZW algorithm to compress data -- somewhat less fine.  There's a
> patent on using XOR to draw a cursor on a display.  That's completely
> not fine.  And there's a patent on remembering a customer so that he
> can buy things just buy telling you he wants them -- the infamous
> Amazon "one-click" patent.  That's so far from fine it's coarse.
> 
> What's the distinction here?  Well, there are two.  The Amazon patent,
> and many other very, very bad software patents, are patents on
> business methods.  There's a booming industry in taking any
> traditional method of commerce, slapping a web interface on it, and
> patenting it.  And this is legal -- now that organization is the only
> one who can use that technique, for years and years.
> 
> The one-click idea is obvious.  There were plenty of ways of
> implementing it, and plenty of people who'd done pieces of it.  But
> now, not only does Amazon have a monopoly on one-click purchases, but
> on many systems like that or incorporating pieces of it.
> 
> These patents on business methods in software are a real, serious
> problem.  And they share a characteristic with the other troublesome
> software patents: they're obvious.
> 
> A patent on use of XOR for drawing a glyph that's supposed to be
> obvious is right up there with a patent on using a lever to lift heavy
> things.  It's a normal, expected part of building a graphics system.
> It's so basic that it's definitional: a cursor *is* a quickly-drawn
> obvious glyph.  XOR *is* the maximum contrast operator, and *is*
> simple to calculate.
> 
> Patents like this are scattered throughout the current software
> development universe.  Rederiving LZW is a standard undergraduate
> information-theory problem.  That is, a bunch of undergrads will be
> given LZ and told to improve it to solve certain problems, and the
> vast majority of the class will come in the next morning with LZW.
> 
> But until it expired very recently, somebody (UNISYS, more or less)
> has a monopoly on use of that algorithm for compression, granted as a
> reward for developing something innovative and non-obvious.  There are
> over two hundred similar patents which encumber any reasonable
> implementation of a computer operating system.  It's not possible to
> build a reasonable software system without infringing on many of these
> patents.  That strongly implies that they're not obvious, and many
> never were.
> 
> What's the solution to this problem?  There are several possibilities,
> none of which are harmful to real innovators:
> 
> * Reduce the amount of time a patent lasts.
> 
> * Examine applications much more closely for obviousness and innovation.
> 
> * Rescind patents when their art matures enough to consider their
>    ideas obvious.
> 
> * Eliminate business-method-in-software patents.  For example, require
>    that the technique be globally novel, not merely novel within the
>    field of software design.
> 
> But none of those hit the real core of the problem: software
> construction is all about abstracting ideas and methods of operation.
> Code reuse is common and vital.  But the industry's still in its
> nascent stages.  Patents on techniques that weren't innovative in 1988
> are still restricting what people can build; that became basic,
> standard technique over a decade ago.  The only way to fix that
> problem is to remove the ability to patent ways of manipulating bits
> with other bits.
> 
> -Brian
> 
> David Farber <dave@farber.net> writes:
> 
> > From: Tom Gray <tom_gray_grc@yahoo.com>
> > Date: August 16, 2004 11:01:56 AM EDT
> > To: dave@farber.net, tom_gray_grc@yahoo.com
> > Subject: Software Patents -- What is the distinction?
> > 
> > There have been some recent postings to the  IP list
> > about software patents. Frankly I cannot understand
> > the point behind these posts and others that I have
> > seen. I have designed hardware and I have designed
> > software. I cannot see any real difference in the
> > design of each. In fact, in designing a solution to a
> > problem, I am often faced with the choice of
> > developing a custom circuit or of choosing one of many
> > processor/software design architectures. The choice
> > between hardware and software does not depend on
> > anything inherent in either technique but in various
> > aspects, such as cost, space  availability etc., that
> > depend on the current technological context.
> >
> > Sine patents do not protect a design in itself but the
> > combination of a solution and a perceived problem, I
> > cannot see any reason why there should be a
> > distinction between a hardware and a software-based
> > design in this regard.
> >
> > If I design a piece of hardware that contains a
> > controller which sequences circuit behavior through
> > some custom microcode, should I not be able to patent
> > this design. It is both hardware and software and both
> > neither.
> >
> > Why should patenting not apply to software-based
> > designs?
> >
> > Tom Gray

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