5 ms·

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

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.
- kenjackson 15y ago
  Any process is arguably a mathematical algorithm. The process by which I sanitize water can be expressed as a mathematical algorithm, where the various components play the role of various mathematical constructs. And therein lies the problem. If you read SW patents they're usually pitched as processes over a computer device. This makes it hard to untangle from any other process that acts over some matter. With that said maybe we get rid of processes altogether. I'd say get rid of everything except drug patents. But that would require congress to sign off.
  - scythe 15y ago
    >If you read SW patents they're usually pitched as processes over a computer device. The problem is that a computer is itself a mathematical construct. If the patents really wanted to describe a process on a device, they could not use as their "device" a Turing machine, because that is not a physical device in the sense of water sanitization. Whereas water sanitization requires the physical presence of water, a program can exist totally in theory as some bits in Wolfram's 2-state-3-symbol. That is, unless you believe the mathematical universe hypothesis, but I don't think the Court's job is to decide whether the Universe exists! I am also not a lawyer, nor formally educated in the field of law. I do know a bit about theoretical CS, though.
    - kenjackson 15y ago
      Computers aren't mathematical constructs. They're simply devices, like a water bottle. But what they can compute, at least as best we understand it, is bound by what is computable by mathematical constructs, such as the lambda calculus. But with things such as DNA computers and nanotechnology, could one argue that the universe is a computer? Can everything just be described as a construction of objects in the real world with stimuli applied to it? To me it just feels like a really slippery slope. Just say "medical drugs" and leave it at that.
      - scythe 15y ago
        >Computers aren't mathematical constructs. A particular computer is not a mathematical construct. The concept of a computer, however, is a mathematical construct; there are no physical characteristics necessary to identify something as a "computer" for the purposes of e.g. arithmetic coding. I could perform arithmetic coding with nothing but a pen and an extremely large amount of paper.

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.

kenjackson 15y ago
Any process is arguably a mathematical algorithm. The process by which I sanitize water can be expressed as a mathematical algorithm, where the various components play the role of various mathematical constructs. And therein lies the problem. If you read SW patents they're usually pitched as processes over a computer device. This makes it hard to untangle from any other process that acts over some matter. With that said maybe we get rid of processes altogether. I'd say get rid of everything except drug patents. But that would require congress to sign off.
- scythe 15y ago
  >If you read SW patents they're usually pitched as processes over a computer device. The problem is that a computer is itself a mathematical construct. If the patents really wanted to describe a process on a device, they could not use as their "device" a Turing machine, because that is not a physical device in the sense of water sanitization. Whereas water sanitization requires the physical presence of water, a program can exist totally in theory as some bits in Wolfram's 2-state-3-symbol. That is, unless you believe the mathematical universe hypothesis, but I don't think the Court's job is to decide whether the Universe exists! I am also not a lawyer, nor formally educated in the field of law. I do know a bit about theoretical CS, though.
  - kenjackson 15y ago
    Computers aren't mathematical constructs. They're simply devices, like a water bottle. But what they can compute, at least as best we understand it, is bound by what is computable by mathematical constructs, such as the lambda calculus. But with things such as DNA computers and nanotechnology, could one argue that the universe is a computer? Can everything just be described as a construction of objects in the real world with stimuli applied to it? To me it just feels like a really slippery slope. Just say "medical drugs" and leave it at that.
    - scythe 15y ago
      >Computers aren't mathematical constructs. A particular computer is not a mathematical construct. The concept of a computer, however, is a mathematical construct; there are no physical characteristics necessary to identify something as a "computer" for the purposes of e.g. arithmetic coding. I could perform arithmetic coding with nothing but a pen and an extremely large amount of paper.