10 ms·

Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.

by tsotha 15y ago

mikeknoop 15y ago
I take a more practical stance: the courts have the ability to fix the situation quicker.
- tsotha 15y ago
  That's only practical in the short term. The courts already have too much power - there's no reason to give them more.
dantheman 15y ago
You are not allowed to patent math; software is math; hence software is not patentable.
- chc 15y ago
  As much as I'd like it to be true, I can't help but find this line of reasoning a bit specious. As Simon Peyton-Jones is fond of pointing out with regards to Haskell's functional purity, a program that is just pure math won't do anything except make your computer heat up. Math doesn't write files, it doesn't draw on a screen, it doesn't send packets across a network. Am I wrong somewhere in there?
  - binarybits 15y ago
    No, a computer does that. You can patent a computer, you just can't patent the software it runs. Just as you can patent a CD player but you can't patent the music it plays.
  - o_nate 15y ago
    A program is pure math - the fact that a computer takes certain actions on the basis of the math doesn't change that. In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet. Like novels, programs should be copywritable but not patentable.
    - qq66 15y ago
      By that rationale, any physical object that is produced by a specified process is pure math. Ergo, no patents for physical products either. That might be your position, can you clarify?
      - o_nate 15y ago
        How could a physical object be pure math? Even if you could completely mathematically specify the process of creating the object, that only means you couldn't patent the specification itself - the object would still be patentable.
        Figs 15y ago
        "In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet." Surely you realize that all possible patents are implied by the alphabet in precisely the same manner that all possible novels are implied by the existence of the alphabet...? :)
        o_nate 15y ago
        There seems to be some confusion here between the thing that is being patented and the description of the thing that is being patented. The fact that the description is written using the alphabet has no bearing on the patentability of the thing itself. No arrangement of letters in the alphabet can be patented - but that doesn't mean that nothing can be patented.
    - Daniel_Newby 15y ago
      A program is pure math ... A program is a tangible, physical arrangement of electrons, atoms, and/or electromagnetic fields. Just because it is easily rearranged and difficult to perceive with the naked eye does not make it mathematical or virtual or unreal. In a sense, all possible computer programs for a given architecture are implied in that architecture, ... All possible medicines are implied by the rules of chemistry obeyed by a liter of pond scum. Determining which potential medicine does what is a patentable invention.
- alecbenzer 15y ago
  I was sort of surprised at that logic. Aren't mathematical algorithms sort of different than software, especially in the context of what people are patenting? Like take the Angry Birds suit - the patent in question covers something about the way new level purchased, right? There is no one specific algorithm associated with that idea. Obviously, one needs to be implemented to get something working, but that's not what the patent is on. If you want to work on the theoretical level of "software is math", then aren't the patents in question on _classes_ of software, or on the effects of software, more than on the software itself?
binarybits 15y ago
The Supreme Court's rule against software patents was a matter of statutory interpretation, not constitutional law. And software patents were created by a lower court (the Federal Circuit) in the first place, so it would be perfectly appropriate for a higher court to reverse their error. I'd love to see Congress fix the problem, but there'd be nothing improper about the courts doing it.
kenthorvath 15y ago
I'm not so sure this isn't a constitutional question. In Article I, section 8, the U.S. Constitution: Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Note that Congress is only given this power in order to promote the progress of science and useful arts. If one can effectively argue that software patents have the opposite effect, and in fact hinder the progress of science and useful arts - and I think such an argument can be made - then it seems reasonable that the courts should strike down software patents as unconstitutional.
- monochromatic 15y ago
  Man, that argument is an uphill battle though.
- orangecat 15y ago
  Unfortunately, Eldred v. Ashcroft indicates otherwise. There wasn't even a pretense that retroactively extending copyright length would promote the progress of anything, but the Supreme Court ruled that Congress can do pretty much anything other than making terms literally infinite.
- scythe 15y ago
  The Supreme Court does not evaluate the intention of a law. Remember, the very process of judicial review was introduced after the Constitution was written, so the parts of the Constitution where it explains why it is written the way it is are rather clearly not policies. That said, Title 35 of the United States Code states: >Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. It is difficult to see how software patents could really fall under this. I don't know of any software patent describing a "process" which is not simply a mathematical algorithm (unpatentable), and they certainly don't describe a machine, manufacture, or composition of matter. The patent described in Diamond v. Diehr is really not at all what we would today consider a software patent; it's not really similar to the patents on, say, wavelet compression in any sense beyond "there's silicon involved". It was a process of molding synthetic rubber, not pushing bits around.
Natsu 15y ago
They're not making a Constitutional argument here, but suggesting that the courts fix some decades-old precedent that went astray starting with Diamond v. Diehr. That's well within the Court's powers. They created the mess, so it's not unreasonable for them to fix it. It's not as though Congress passed a law allowing software patents or something.
- brlewis 15y ago
  Not true. Diehr did not start the mess. The Diehr opinion said exactly the same thing Flook did. More to come in an essay I'm working on now.
  - brlewis 15y ago
    Finished the essay: http://ourdoings.com/ourdoings-startup/2011-07-28 http://ourdoings.com/ourdoings-startup/2011-07-28
    - Natsu 15y ago
      That's a good summary. I admit that putting a "start" on this mess is a bit difficult, because things happened one step at a time. I think the problem, though, is in how 35 USC 101 (patentable subject matter) got unhinged from 102 & 103 (novelty / non-obviousness). So you could meet the novelty requirements with something that wasn't patentable subject matter at all. Once the lawyers could pry them apart like that, they could pass 101's requirements by saying the software is running on a computer and pass 102 & 103 requirements by saying that the software is new, even if the hardware in the patent is a normal PC. If they reversed that old decision and said that you can only pass 102 & 103 with something that is patentable subject matter, the scheme would fall apart. You will note that this is, in effect, exactly what the decision to treat the stuff that isn't patentable subject matter as part of the prior art accomplishes and that Parker v. Flook does precisely that. Meanwhile, with Diamond v. Diehr, they got considered separately and ultimately separated.
WiseWeasel 15y ago
Congress would appear incapable of any policy to the detriment of the few large software companies that benefit from the existence of software patents. This seems more of a domain for the FTC and Justice Department, due to the implications for anti-competitive behavior facilitated by these types of patents.
nokcha 15y ago
>Software patents are ... not a constitutional question A constitutional argument could be made that software is not covered by the term "useful Arts". In fact, Justice Scalia suggested that the business-method patent in Bilksi might be invalidated on this ground during oral arguments: > JUSTICE SCALIA: Well, if the government says that the -- that the term on which it hangs its hat is the term "useful arts" and that that meant, originally, and still means manufacturing arts, arts dealing with workmen, with -- you know, inventors, like Lorenzo Jones, not -- not somebody who writes a book on how to win friends and influence people. What is wrong with [the] analysis, that ..."useful arts" ... always was thought to deal with machines and inventions?

Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.

by tsotha 15y ago

Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.

mikeknoop 15y ago

I take a more practical stance: the courts have the ability to fix the situation quicker.

tsotha 15y ago
That's only practical in the short term. The courts already have too much power - there's no reason to give them more.

dantheman 15y ago

You are not allowed to patent math; software is math; hence software is not patentable.

chc 15y ago
As much as I'd like it to be true, I can't help but find this line of reasoning a bit specious. As Simon Peyton-Jones is fond of pointing out with regards to Haskell's functional purity, a program that is just pure math won't do anything except make your computer heat up. Math doesn't write files, it doesn't draw on a screen, it doesn't send packets across a network. Am I wrong somewhere in there?
- binarybits 15y ago
  No, a computer does that. You can patent a computer, you just can't patent the software it runs. Just as you can patent a CD player but you can't patent the music it plays.
- o_nate 15y ago
  A program is pure math - the fact that a computer takes certain actions on the basis of the math doesn't change that. In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet. Like novels, programs should be copywritable but not patentable.
  - qq66 15y ago
    By that rationale, any physical object that is produced by a specified process is pure math. Ergo, no patents for physical products either. That might be your position, can you clarify?
    - o_nate 15y ago
      How could a physical object be pure math? Even if you could completely mathematically specify the process of creating the object, that only means you couldn't patent the specification itself - the object would still be patentable.
      - Figs 15y ago
        "In a sense, all possible computer programs for a given architecture are implied in that architecture, even if they haven't been written yet - just like all possible novels are implied by the letters of the alphabet, even if they haven't been written yet." Surely you realize that all possible patents are implied by the alphabet in precisely the same manner that all possible novels are implied by the existence of the alphabet...? :)
        o_nate 15y ago
        There seems to be some confusion here between the thing that is being patented and the description of the thing that is being patented. The fact that the description is written using the alphabet has no bearing on the patentability of the thing itself. No arrangement of letters in the alphabet can be patented - but that doesn't mean that nothing can be patented.
  - Daniel_Newby 15y ago
    A program is pure math ... A program is a tangible, physical arrangement of electrons, atoms, and/or electromagnetic fields. Just because it is easily rearranged and difficult to perceive with the naked eye does not make it mathematical or virtual or unreal. In a sense, all possible computer programs for a given architecture are implied in that architecture, ... All possible medicines are implied by the rules of chemistry obeyed by a liter of pond scum. Determining which potential medicine does what is a patentable invention.
alecbenzer 15y ago
I was sort of surprised at that logic. Aren't mathematical algorithms sort of different than software, especially in the context of what people are patenting? Like take the Angry Birds suit - the patent in question covers something about the way new level purchased, right? There is no one specific algorithm associated with that idea. Obviously, one needs to be implemented to get something working, but that's not what the patent is on. If you want to work on the theoretical level of "software is math", then aren't the patents in question on _classes_ of software, or on the effects of software, more than on the software itself?

binarybits 15y ago

The Supreme Court's rule against software patents was a matter of statutory interpretation, not constitutional law. And software patents were created by a lower court (the Federal Circuit) in the first place, so it would be perfectly appropriate for a higher court to reverse their error. I'd love to see Congress fix the problem, but there'd be nothing improper about the courts doing it.

kenthorvath 15y ago

I'm not so sure this isn't a constitutional question. In Article I, section 8, the U.S. Constitution: Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Note that Congress is only given this power in order to promote the progress of science and useful arts. If one can effectively argue that software patents have the opposite effect, and in fact hinder the progress of science and useful arts - and I think such an argument can be made - then it seems reasonable that the courts should strike down software patents as unconstitutional.

monochromatic 15y ago
Man, that argument is an uphill battle though.
orangecat 15y ago
Unfortunately, Eldred v. Ashcroft indicates otherwise. There wasn't even a pretense that retroactively extending copyright length would promote the progress of anything, but the Supreme Court ruled that Congress can do pretty much anything other than making terms literally infinite.
scythe 15y ago
The Supreme Court does not evaluate the intention of a law. Remember, the very process of judicial review was introduced after the Constitution was written, so the parts of the Constitution where it explains why it is written the way it is are rather clearly not policies. That said, Title 35 of the United States Code states: >Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. It is difficult to see how software patents could really fall under this. I don't know of any software patent describing a "process" which is not simply a mathematical algorithm (unpatentable), and they certainly don't describe a machine, manufacture, or composition of matter. The patent described in Diamond v. Diehr is really not at all what we would today consider a software patent; it's not really similar to the patents on, say, wavelet compression in any sense beyond "there's silicon involved". It was a process of molding synthetic rubber, not pushing bits around.

Natsu 15y ago

They're not making a Constitutional argument here, but suggesting that the courts fix some decades-old precedent that went astray starting with Diamond v. Diehr. That's well within the Court's powers. They created the mess, so it's not unreasonable for them to fix it. It's not as though Congress passed a law allowing software patents or something.

brlewis 15y ago
Not true. Diehr did not start the mess. The Diehr opinion said exactly the same thing Flook did. More to come in an essay I'm working on now.
- brlewis 15y ago
  Finished the essay: http://ourdoings.com/ourdoings-startup/2011-07-28 http://ourdoings.com/ourdoings-startup/2011-07-28
  - Natsu 15y ago
    That's a good summary. I admit that putting a "start" on this mess is a bit difficult, because things happened one step at a time. I think the problem, though, is in how 35 USC 101 (patentable subject matter) got unhinged from 102 & 103 (novelty / non-obviousness). So you could meet the novelty requirements with something that wasn't patentable subject matter at all. Once the lawyers could pry them apart like that, they could pass 101's requirements by saying the software is running on a computer and pass 102 & 103 requirements by saying that the software is new, even if the hardware in the patent is a normal PC. If they reversed that old decision and said that you can only pass 102 & 103 with something that is patentable subject matter, the scheme would fall apart. You will note that this is, in effect, exactly what the decision to treat the stuff that isn't patentable subject matter as part of the prior art accomplishes and that Parker v. Flook does precisely that. Meanwhile, with Diamond v. Diehr, they got considered separately and ultimately separated.

WiseWeasel 15y ago

Congress would appear incapable of any policy to the detriment of the few large software companies that benefit from the existence of software patents. This seems more of a domain for the FTC and Justice Department, due to the implications for anti-competitive behavior facilitated by these types of patents.

nokcha 15y ago

>Software patents are ... not a constitutional question A constitutional argument could be made that software is not covered by the term "useful Arts". In fact, Justice Scalia suggested that the business-method patent in Bilksi might be invalidated on this ground during oral arguments: > JUSTICE SCALIA: Well, if the government says that the -- that the term on which it hangs its hat is the term "useful arts" and that that meant, originally, and still means manufacturing arts, arts dealing with workmen, with -- you know, inventors, like Lorenzo Jones, not -- not somebody who writes a book on how to win friends and influence people. What is wrong with [the] analysis, that ..."useful arts" ... always was thought to deal with machines and inventions?