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Saying “software is math” is akin to saying “books are just letters”; the building blocks of software is not what people want to protect, it’s the idea and the

by louthy 3y ago

Saying “software is math” is akin to saying “books are just letters”; the building blocks of software is not what people want to protect, it’s the idea and the effort to invent. Whether software should be patentable or not is obviously open for discussion, but saying it’s just math isn’t really enough of an argument.

no_wizard 3y ago
The best of the mainstream arguments against software patents has always been: What does Intellectual Property and Copyright not cover that patents do when it comes to software? I only have a few friends I trust on such a topic, and my understanding is between IP and Copyright laws from them (ones a public policy researcher, the other a lawyer), it would be more than sufficient for protecting companies work and patents were lobbied only because their enforcement is more heavy handed, IE, it can stifle competition under the guise of "patent infringement"
- louthy 3y ago
  > The best of the mainstream arguments against software patents has always been: What does Intellectual Property and Copyright not cover that patents do when it comes to software? Instinctively, that’s where I think it should be, agreed.
- jcranmer 3y ago
  > What does Intellectual Property and Copyright not cover that patents do when it comes to software? Copyright cannot and does not prevent someone from clean-room engineering a replacement for your software. Patents can do that. (Whether or not they should is a different question, but that's not what you asked). FWIW, patents are one of the forms of intellectual property.
  - thaumasiotes 3y ago
    Copyright can do that, in exactly the same way that patents can. It just happens not to as currently configured. You might observe that a clean-room replacement is in and of itself evidence that a patent covering it was obvious and therefore not validly granted, which would tend to imply that patents cannot prevent this.
  - no_wizard 3y ago
    >FWIW, patents are one of the forms of intellectual property. To keep the discussion well focused, I didn't want to get into the nuance of "patents are IP law too" since in broader discussions, IP and patents are usually discussed separately, even though yes, they exist under the same legal umbrella (Intellectual Property). > Copyright cannot and does not prevent someone from clean-room engineering a replacement for your software. Patents can do that. (Whether or not they should is a different question, but that's not what you asked). That's a fair point, only patents give an entity the legal "teeth" to do this, though there is room for argument that a clean room engineering replacement would then show novelty and non obvious aspect of a patent to be invalid, and could be grounds for patent invalidation [0]: Arguably, the fact that courts are sorting this out and not specialized experts at the USPTO is one of the main drivers for why our patent system is broken. Federal judges are not required to be technical experts to oversee a patent case. In addition, this allows the USPTO to liberally grant patents as they pass the validity concerns off to the courtroom
  - GoblinSlayer 3y ago
    Presumably clean room implementation takes the same amount of effort as production of specification, so it doesn't save effort of invention.
    - throwawayapples 3y ago
      Oh, no, that's not true at all. An invention might not even be possible, let alone having a clear and (literally, provably) correct specification of inputs and outputs. Just seeing that it exists, to say nothing of getting the correct proportion of inputs and outputs, could shave a decade off your invention cycle. Take, for example, the nuclear bomb. Just knowing that it could be done put you ten steps ahead. What if cold fusion or a warp drive were known to be possible because you could see it (even if from a great distance with little detail)? Airplane manufacturers leapt ahead (literally) after the Wright Brothers. A tremendous amount of effort for worthy inventions is often involved simply in proving that it can be done. Once you know it can be done, you don't have to prove it anymore, and also large companies will throw buckets of money at a clone of something that's proven to work. A patent (sometimes) prevents that -- at least, when everything is working as it should be. (In this case, clearly not!)
      - GoblinSlayer 3y ago
        Possibility of data compression was known since 1977, video codecs exist since 1984.
        defrost 3y ago
        Shannon, C. E. (1948). A Mathematical Theory of Communication. Bell System Technical Journal, 27(3), 379–423. doi:10.1002/j.1538-7305.1948.tb01338.x https://sci-hub.ru/10.1002/j.1538-7305.1948.tb01338.x https://sci-hub.ru/10.1002/j.1538-7305.1948.tb01338.x https://en.wikipedia.org/wiki/Shannon%27s_source_coding_theorem https://en.wikipedia.org/wiki/Shannon%27s_source_coding_theo... https://faculty.uml.edu/jweitzen/16.548/classnotes/Theory%20of%20Data%20Compression.htm https://faculty.uml.edu/jweitzen/16.548/classnotes/Theory%20...
- jandrewrogers 3y ago
  The application of patents and copyrights to software are identical to how they are applied in chemistry and other physical engineering disciplines -- I've worked with both. A patent covers the physical algorithm, a copyright covers the design of an implementation of the algorithm. In chemical engineering, these are licensed separately, but the patent is more important and the copyright is worth little in practice. The algorithm is the expensive step, design of a novel implementation (a copyright) is purely mechanical and any engineer can produce this part. If there was no patent, everyone would just pay an engineer to produce a new implementation of the chemistry algorithm. This would put the inventor of the chemistry at a huge disadvantage, since the costs of producing a new copyright is the same for everyone but only the inventor would have to amortize the cost of the invention. It would be more economical to never license the copyright from the inventor in many cases. Regardless of the mechanism, the question ultimately comes down to who is going to pay for the cost of R&D. Copyright does not answer this question either in theory or in practice. The alternative to patents is trade secrets, which have their own issues. In areas of software that use trade secrets almost exclusively, the state-of-the-art in software is often decades ahead of academic literature and open source. The cloud has been a huge boon for software trade secrets in that it makes reverse engineering difficult. Trade secrets makes it difficult for outside people to advance the state-of-the-art because the know-how is not public and creates negative externalities in terms of employment contracts. To address another notion, virtually no R&D is done in open source. This is an empirical observation made by many. The incentives for doing R&D in open source are very poor. There are already large gaps in technology between what is available in open source and what exists in closed source software. Again, it all comes down to who is going to pay the significant costs of R&D.
  - Kim_Bruning 3y ago
    Your wording is a bit confusing I think. Algorithms are not physical as far as I'm aware. Since (pure) algorithms and formulas are different ways to express mathematics, my impression was also that they were not patentable as such. Maybe you meant something slightly different? Also, do you have sources for the statement "virtually no R&D is done in open source"?
    - 3y ago
codedokode 3y ago
Why not patent actual math then? For example, math that is used in machine learning: linear algebra, quadratic error etc.
- louthy 3y ago
  Presumably there’s plenty of prior art, maths has been around for quite a while now ;)

by louthy 3y ago

no_wizard 3y ago

The best of the mainstream arguments against software patents has always been: What does Intellectual Property and Copyright not cover that patents do when it comes to software? I only have a few friends I trust on such a topic, and my understanding is between IP and Copyright laws from them (ones a public policy researcher, the other a lawyer), it would be more than sufficient for protecting companies work and patents were lobbied only because their enforcement is more heavy handed, IE, it can stifle competition under the guise of "patent infringement"

louthy 3y ago
> The best of the mainstream arguments against software patents has always been: What does Intellectual Property and Copyright not cover that patents do when it comes to software? Instinctively, that’s where I think it should be, agreed.
jcranmer 3y ago
> What does Intellectual Property and Copyright not cover that patents do when it comes to software? Copyright cannot and does not prevent someone from clean-room engineering a replacement for your software. Patents can do that. (Whether or not they should is a different question, but that's not what you asked). FWIW, patents are one of the forms of intellectual property.
- thaumasiotes 3y ago
  Copyright can do that, in exactly the same way that patents can. It just happens not to as currently configured. You might observe that a clean-room replacement is in and of itself evidence that a patent covering it was obvious and therefore not validly granted, which would tend to imply that patents cannot prevent this.
- no_wizard 3y ago
  >FWIW, patents are one of the forms of intellectual property. To keep the discussion well focused, I didn't want to get into the nuance of "patents are IP law too" since in broader discussions, IP and patents are usually discussed separately, even though yes, they exist under the same legal umbrella (Intellectual Property). > Copyright cannot and does not prevent someone from clean-room engineering a replacement for your software. Patents can do that. (Whether or not they should is a different question, but that's not what you asked). That's a fair point, only patents give an entity the legal "teeth" to do this, though there is room for argument that a clean room engineering replacement would then show novelty and non obvious aspect of a patent to be invalid, and could be grounds for patent invalidation [0]: Arguably, the fact that courts are sorting this out and not specialized experts at the USPTO is one of the main drivers for why our patent system is broken. Federal judges are not required to be technical experts to oversee a patent case. In addition, this allows the USPTO to liberally grant patents as they pass the validity concerns off to the courtroom
- GoblinSlayer 3y ago
  Presumably clean room implementation takes the same amount of effort as production of specification, so it doesn't save effort of invention.
  - throwawayapples 3y ago
    Oh, no, that's not true at all. An invention might not even be possible, let alone having a clear and (literally, provably) correct specification of inputs and outputs. Just seeing that it exists, to say nothing of getting the correct proportion of inputs and outputs, could shave a decade off your invention cycle. Take, for example, the nuclear bomb. Just knowing that it could be done put you ten steps ahead. What if cold fusion or a warp drive were known to be possible because you could see it (even if from a great distance with little detail)? Airplane manufacturers leapt ahead (literally) after the Wright Brothers. A tremendous amount of effort for worthy inventions is often involved simply in proving that it can be done. Once you know it can be done, you don't have to prove it anymore, and also large companies will throw buckets of money at a clone of something that's proven to work. A patent (sometimes) prevents that -- at least, when everything is working as it should be. (In this case, clearly not!)
    - GoblinSlayer 3y ago
      Possibility of data compression was known since 1977, video codecs exist since 1984.
      - defrost 3y ago
        Shannon, C. E. (1948). A Mathematical Theory of Communication. Bell System Technical Journal, 27(3), 379–423. doi:10.1002/j.1538-7305.1948.tb01338.x https://sci-hub.ru/10.1002/j.1538-7305.1948.tb01338.x https://sci-hub.ru/10.1002/j.1538-7305.1948.tb01338.x https://en.wikipedia.org/wiki/Shannon%27s_source_coding_theorem https://en.wikipedia.org/wiki/Shannon%27s_source_coding_theo... https://faculty.uml.edu/jweitzen/16.548/classnotes/Theory%20of%20Data%20Compression.htm https://faculty.uml.edu/jweitzen/16.548/classnotes/Theory%20...
jandrewrogers 3y ago
The application of patents and copyrights to software are identical to how they are applied in chemistry and other physical engineering disciplines -- I've worked with both. A patent covers the physical algorithm, a copyright covers the design of an implementation of the algorithm. In chemical engineering, these are licensed separately, but the patent is more important and the copyright is worth little in practice. The algorithm is the expensive step, design of a novel implementation (a copyright) is purely mechanical and any engineer can produce this part. If there was no patent, everyone would just pay an engineer to produce a new implementation of the chemistry algorithm. This would put the inventor of the chemistry at a huge disadvantage, since the costs of producing a new copyright is the same for everyone but only the inventor would have to amortize the cost of the invention. It would be more economical to never license the copyright from the inventor in many cases. Regardless of the mechanism, the question ultimately comes down to who is going to pay for the cost of R&D. Copyright does not answer this question either in theory or in practice. The alternative to patents is trade secrets, which have their own issues. In areas of software that use trade secrets almost exclusively, the state-of-the-art in software is often decades ahead of academic literature and open source. The cloud has been a huge boon for software trade secrets in that it makes reverse engineering difficult. Trade secrets makes it difficult for outside people to advance the state-of-the-art because the know-how is not public and creates negative externalities in terms of employment contracts. To address another notion, virtually no R&D is done in open source. This is an empirical observation made by many. The incentives for doing R&D in open source are very poor. There are already large gaps in technology between what is available in open source and what exists in closed source software. Again, it all comes down to who is going to pay the significant costs of R&D.
- Kim_Bruning 3y ago
  Your wording is a bit confusing I think. Algorithms are not physical as far as I'm aware. Since (pure) algorithms and formulas are different ways to express mathematics, my impression was also that they were not patentable as such. Maybe you meant something slightly different? Also, do you have sources for the statement "virtually no R&D is done in open source"?
  - 3y ago

codedokode 3y ago

Why not patent actual math then? For example, math that is used in machine learning: linear algebra, quadratic error etc.

louthy 3y ago
Presumably there’s plenty of prior art, maths has been around for quite a while now ;)