Slow rays of hope
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| Author | Content |
|---|---|
| Ridcully May 24, 2012 12:59 PM EDT |
Okay, I guess we all agree that the Jury got it dead right. Oracle is now facing the fact that it has squandered millions in a futile attempt to "get Google for billions" over software patents. We also know that the EU's highest court has ruled that APIs cannot be copyrighted and while I cannot claim to know what is in Judge Alsup's mind, he is well aware of that EU decision and the reasons for it. My bets are that Alsup will rule similarly that APIs cannot be copyrighted. Oh sure, there can be appeals by Oracle, but given the enormous care taken by Alsup in this trial, I think Oracle is flogging a dead horse and the net result of all this foolery is (and will be) a big set of zeroes for Oracle. It also irritates me considerably that Oracle has forced another large company to spend huge sums of money in order to defend a completely correct position. However in the back of everybody's mind must be the thought that this futile exercise would never have occurred if software patents were illegal. I probably don't have this just right, but my understanding is that the USA Supreme Court has ruled that natural processes cannot be patented. Mathematics is just such a natural process - and to me, computer software programs are simply mathematical equations written in a logical, visual format that combines numerals, letters and operators. Google has had a big win, and both that company and the associated software industry based on Android deserve the great implications, but when you look at it from the other perspective, where has the money flowed ? And the answer is simple: into legal pockets. What a complete waste of time and money that could have been far better spent on innovation and development. I think we all look forward to the day when software patents become invalid throughout the world and some sort of sanity returns to to computer business competition. |
| Khamul May 24, 2012 1:10 PM EDT |
I hope Google can successfully sue Oracle for damages and make them pay the entire legal bill. |
| skelband May 24, 2012 1:14 PM EDT |
The idiotic side of this is that those "millions" of costs are still fairly small change to the likes of Google and Oracle. |
| Ridcully May 24, 2012 1:29 PM EDT |
@skelband......absolutely agreed. What worries me is that Oracle could have gone after a much smaller company that had neither the money nor the resources that Google has. In that scenario, it is quite possible the information that Google had would not have been presented correctly to the jury and Oracle may have won. It's how a certain unmentioned company based in Redmond often works - belt the heck out of a tiny company and set a legal precedent. Nevertheless, while that "small change" may be petty cash to Google and Oracle, the amounts considered in isolation are enormous (perhaps 50-100 million dollars) and the software development and teams of workers that could have been produced or employed with those sums..........I don't think I need go any further. |
| Bob_Robertson May 24, 2012 2:17 PM EDT |
I would have preferred that the very existence of software patents had been challenged. |
| Fettoosh May 24, 2012 2:36 PM EDT |
Quoting:I would have preferred that the very existence of software patents had been challenged. I am not opening any doors for you Bob, but that is not going to happen as long as there are people at the USPTO making their living and Congress thinks it is already a good solution to a major issue. |
| Bob_Robertson May 24, 2012 3:35 PM EDT |
"I am not opening any doors for you Bob" Not asking you to, Fettoosh. So far as I know, it's still possible to voice an opinion on the subject at hand. |
| Khamul May 24, 2012 4:06 PM EDT |
In other news, Java's creator James Gosling is mad about the verdict. He's apparently mad that someone else can copy another person's idea and do it better, and says this is "wrong". Apparently, he doesn't see his own hypocrisy, since he blatantly ripped off many ideas in creating Java: 1) He ripped off C++ for its syntax and object-orientedness 2) He ripped off John McCarthy's invention of the automatic garbage collector. By his own logic, he should never have created Java at all, and instead should have simply used C++ or Lisp. What a loser. |
| gus3 May 24, 2012 4:10 PM EDT |
Don't forget the virtual machine, an idea ripped off of UCSD's P-code. |
| Khamul May 24, 2012 4:12 PM EDT |
Yep, Gosling is just a big thief and hypocrite. |
| Fettoosh May 24, 2012 4:22 PM EDT |
He should have kept it to himself to prevent others from copying it. :-) |
| tracyanne May 24, 2012 9:45 PM EDT |
I find it quite interesting that technical people, in the main, compare Software to Mathematics. Although this is a perfectly acceptable point of view, I think software is actually much more like creative writing. Just like works of fiction which have commonalities; themes, characterisations, plot lines,plot devices. There are commonalities that all software uses and reuses, and without which no piece of software can exist, to the extent, that like a work of fiction there isn't really anything new in software, just the recombination of what already exits. So that just like a work of fiction where the idea of patenting any element is considered ludicrous, so too should the idea that one can patent anything in software. Copyright the way in which those elements are combined to create a whole, yes, but to claim a patent is just silly. |
| JaseP May 24, 2012 10:12 PM EDT |
I agree somewhat with Tracyanne, but I still believe that it's also analogous to mathematics (a prime reason it cannot be patented, any more than an equation can). A lot of judges have misinterpreted the Diamond v. Diehr case to be a broad acceptance of software patents. But that case involved a computer program as PART of a patentable process, not the patent subject matter in and of itself. |
| gus3 May 24, 2012 10:31 PM EDT |
The abstraction of computer programming, via mid-level and high-level languages, may have a lot in common with creative writing. But there's a reason tech people compare Software to Maths: at its core (pun intended, but serious, too) a CPU is nothing more than a glorified calculator. This is what gives rise to the Church-Turing Hypothesis: Everything computable algorithmically, can be computed by any Turing-complete system. Including font outlines, MIDI synthesis, SNMP monitoring, Radia Perlman's tree spanning, and Microsoft Word's spell-check algorithm that fails so spectacularly from time to time. With RAM management and time, these could all be carried out by an original Intel 4004 CPU, no less than by a Raspberry Pi, an Itantium server, or a JVM. |
| caitlyn May 24, 2012 11:04 PM EDT |
@tracyanne et al, in my first job the President/CEO wanted to know when a very large, intensive software development project would be done. I refused to give him an answer. When he insisted I compared writing software to painting. It's a work of art is how I explained it to him. Creative writing is another good analogy. You can't time a creative process and coding is just that. Oh, and I studied phsyics at university so my knowledge of math was not lacking. It's just not how I see coding. |
| tracyanne May 24, 2012 11:13 PM EDT |
Yes I understand Turing-complete. I simply find it much easier to talk about the issue with non techie people as a creative writing type of issue. |
| caitlyn May 24, 2012 11:16 PM EDT |
@gus3: You are technically correct but that simply isn't how the human mind works. Developer are humans. I think tracyanne's analogy or mine fits the human coding process better. |
| Fettoosh May 24, 2012 11:23 PM EDT |
Engineers are mostly practical people and they compare software code to mathematics because both are highly logical and both mostly used to solve practical problems. |
| caitlyn May 24, 2012 11:33 PM EDT |
@Fettoosh: I think you just put your finger on the difference between most male engineers I know, who see things the way you do, and most female engineers I know, who see things the way tracyanne and I do. That's an over generalization, of course. It also explains why diverse teams of developers get better results: differing perspectives lead to a wider array of choices to solve problems. |
| BernardSwiss May 24, 2012 11:38 PM EDT |
It's both, of course. Creative and logical. Good design and engineering have long been recognized as a both rigorous AND creative endeavours. |
| Fettoosh May 24, 2012 11:42 PM EDT |
That is actually why I like and encourage females to go into IT. You add a special touch to programming and applications in general. My two daughters are good at computers but didn't want to work in IT. They say it keeps me angry and distracted (not true). They say they see me how serious and focus when I am at the computer. |
| caitlyn May 24, 2012 11:47 PM EDT |
I agree with you, BernardSwiss. Fettoosh, I don't know if there are any chapters of groups like LinuxChix or any of the women's engineering groups in your area. Their mentoring programs and the perspectives of women in the field might convince your daughters to see things differently... or not. It may give them someone they can relate to differently than they relate to you who is in the field. |
| Fettoosh May 24, 2012 11:55 PM EDT |
We live In Ann Arbor MI couple miles from UM where I worked one time, but they are not interested. |
| Ridcully May 25, 2012 2:07 AM EDT |
@Fettoosh....."That is why I like and encourage females to go into IT. You add a special touch to programming.." I wouldn't know whether that is true one way or the other, but with instinctive response, I'd definitely agree. The ladies, bless them, think in very different ways and with very different perspectives and long may that difference remain. (This definitely isn't being patronising or cynical or sarcastic in any way.....just based on over 40 years of marriage, and a daughter as well.) The often startling viewpoints my wife fires at me constantly delight me at their insight and clarity and having both hers and my perspectives make a darn good structure of analysis of all sorts of things. I have no doubt therefore that women programmers are not just useful, they are downright essential and long may they contribute in equal measures to the common good. There !! I'm hopping off my soapbox. :-) Post Script: I noted in my second post above at the top of the page, that I was concerned about a certain Redmond company and its attacks on FOSS (and by implication, Android). It appears I am not the only one to think that way. The following article has just appeared and it's worth a look: http://www.internetnews.com/blog/skerner/oracle-java-claims-... |
| jdixon May 25, 2012 7:58 AM EDT |
> @gus3: You are technically correct but that simply isn't how the human mind works. Developer are humans. I think tracyanne's analogy or mine fits the human coding process better. You are both correct. High level coding is creative writing. But the assembled code which runs on the processor is pure mathematics. Of course, creative writing can't be patented, only copyrighted. |
| Fettoosh May 25, 2012 9:30 AM EDT |
Quoting:There !! I'm hopping off my soapbox. :-) And we call them the weaker sex. hah, |
| dinotrac May 26, 2012 6:47 AM EDT |
Mathematics is a natural process? No. |
| Ridcully May 26, 2012 8:15 AM EDT |
Elucidate please dinotrac.....I'd like to see your logic. |
| dinotrac May 26, 2012 8:21 AM EDT |
Mathematics is a human-invented method for describing things. It is a fine way to describe many natural process, but you'll never see quadratic equations blooming in the field amongst the lilies. |
| jdixon May 26, 2012 9:13 AM EDT |
> Mathematics is a human-invented method for describing things... You are aware that other animals besides humans count, aren't you Dino? |
| Fettoosh May 26, 2012 9:29 AM EDT |
Quoting:Mathematics is a human-invented method for describing things. Dino, does this have anything to do with lawyer logic? Mathematics is conceived/created by a natural thing we call the brain, grows in that natural thing, to describe natural things, so what is not so natural about it? It is a natural process. |
| dinotrac May 26, 2012 10:18 AM EDT |
jdixon - So -- what are they doing when they count? What are they conceiving? |
| dinotrac May 26, 2012 10:22 AM EDT |
@fettoosh - By your definition, aspartame is a natural ingredient. The whole "it's all mathematics" argument has the same problem: It's meaningless. If software is just mathematics, so is drug research, aircraft design, etc. Anything that can be modeled is arguably just math. For that matter, drugs are just chemistry/biology, other things just physics. It's completely fair to say that patents on software don't further the purpose of patents -- which is to encourage innovation and to deliver the results of that innovation to the public domain. Patents have worked pretty well in that regard for many things, not so well for others. |
| jdixon May 26, 2012 12:10 PM EDT |
> So -- what are they doing when they count? What are they conceiving? I have no idea. But it's been demonstrated that they do, and counting is a basic part of mathematics. So arguing that it's a human invention.seems to be stretching the definition somewhat. Now, I might be willing to accept the premise that trigonometry, geometry, algebra, and calculus are human inventions, but that's a more limited argument. And since computation simply involves the addition of 1's and 0's, which is analogous to simple counting... |
| jdixon May 26, 2012 12:15 PM EDT |
> Anything that can be modeled is arguably just math. No. There is a substantial difference between a model and a physical reality. Just ask the global warming advocates, who seem to be confounded by that very matter. :) To state it another way, the map is not the terrain. The problem with software is that there is no physical reality involved. Software may interface with the real world via physical devices, but in and of itself it has no more physical reality than our thoughts, which can be neither copyrighted nor patented until they're placed in physical form. |
| Fettoosh May 26, 2012 2:24 PM EDT |
Quoting:By your definition, aspartame is a natural ingredient. Quoting: Wikipedia: Aspartame was discovered in 1965 by James M. Schlatter, a chemist working for G.D. Searle & Company. Hmm, they must think that it exists in nature to say discovered. Is Carbon natural? is Oxygen, Hydrogen, Nitrogen, etc? They all are natural elements and no one knows for sure if aspartame exist naturally or not, but it is made of natural elements. I say there is a good probability it might. Quoting:Mathematics is a human-invented method for describing things... Math is much more than formulas agreed to by people, it is thoughts, thoughts and concepts that expand beyond physical things. |
| Ridcully May 26, 2012 5:16 PM EDT |
And on the basis of all the above Dinotrac, I remain firmly convinced that software is simply a novel form of mathematics expression in alpha-numeric formats and it is highly conceptual until actually written in those formats. In addition, they have the direct ability to be translated into strings of zeros and ones and retain exactly the same information. Try doing that with any flower of the meadow and still have a sweet perfume and a beautiful physical structure. The "lilies of the field" are most definitely not alpha-numeric constructs in my book - I think you may be casting your net of definition just a wee bit too wide. But you always DID love an argument. Looks like you got one. |
| dinotrac May 27, 2012 4:38 PM EDT |
>The problem with software is that there is no physical reality involved Really? Then all of our problems are solved. There are not disk drives. There are no thumb drives. There is no RAM. Software is just an abstract concept with no physical reality. Do me a favor, though -- please don't tell the folks who break down and pay people to write it. They think they're getting something for their money. |
| Ridcully May 27, 2012 6:02 PM EDT |
I think that what you have said above, dinotrac, pulls in two "rather mutually exclusive" areas to try to prove your point. I believe that software really IS highly conceptual and then those mathematical ideas are then expressed on paper or in digital formats. In my opinion, your comment above on disk/thumb drives etc. has nothing to do with the *conceptual idea of software* because you are now talking about the medium on which the software has been stored; and you forgot to add paper as either flat sheets of hand written material, punched tapes or cards, etc. etc., all of which have been used and for certain applications are still used. Every item of software created has come from a concept in a human mind; how it is stored is quite another matter. For the concepts, there is no physical reality involved, unless you want to include the fact that they are transient electrical currents in the human brain. Storage is certainly physical, but the concepts themselves still retain their non-physical nature in the same way that the number "one" is a concept, but can be applied to any physical aspect of the universe.. |
| Fettoosh May 27, 2012 7:01 PM EDT |
If I might add, imaginary numbers and frequency domain. are simplest examples of conceptual ideas. |
| gus3 May 27, 2012 8:44 PM EDT |
Sigh. Here it is again. It's one thing to invent a new kind of (whatever: switch, lever, automatic powertrain, you name it). It's quite another to dictate how that thing may be used by its owners. So the switch is closed, and an electrical current is flowing through it. Given that it's a Boolean binary-state system, does that closed switch represent a 1, a 0, true, false, success, failure? It depends on the context. The developer and the user are allowed to let it mean what they will, as long as they agree on which meaning it retains. If I buy one of your new switches, and I put it to use, you are not allowed to tell me that I may close the switch only to indicate success. That decision is not yours to make, no matter what your lawyer tells you. There's a reason lawyers didn't design the Z3, Colossus, or ENIAC. These were mathematical machines. Their descendants still are. It doesn't matter that a particular number stored in a particular byte is a retirement age, or the ASCII letter 'A'. The interpretation of that number is up to us. It's just a number to the computer. It's time for lawyers to stop pretending otherwise. |
| dinotrac May 27, 2012 11:48 PM EDT |
@gus3 -- Nobody patents the storage of a number in a computer memory. I defy you to find a current patent for that claim. One major patent that included a storage implementation and might have tried to claim the idea of storing data electronically was granted for Sperry-Rand's work on ENIAC, but was invalidated the first time Sperry-Rand tried to enforce it in court. |
| jdixon May 28, 2012 5:15 AM EDT |
> There are not disk drives. There are no thumb drives. here is no RAM. Those aren't software Dino. They may contain embedded software, but they're not software. |
| jacog May 28, 2012 6:35 AM EDT |
I'm against the patenting of software, unless patents were to be used the way it was initially intended many years ago, but, "The problem with software is that there is no physical reality involved" Is a silly argument. |
| dinotrac May 28, 2012 7:27 AM EDT |
@jdixon -- You claim that software is some pure mathematical entity that exists without people, without any physical reality. You also claim that "things" are different -- even though they can be represented by mathematics without any physical reality. Here's a question for you: If I were to invent some nifty new clean engine that was able to generate energy by, say, tapping the resonance of atoms in the air, I could probably get a patent for it. However, I couldn't patent the atoms. If I made it from metal, I couldn't patent the casting and machining of the metal, and -- unless I can up with some novel new alloy, I probably couldn't patent the metal, either. Hmmm. You can go a long way with this. If I used an electronic control system, I couldn't patent the use of silicon ICs, etc. In the end, I patent an implementation, but not the physical representation of the implementation -- which exists primarily to serve the requirement that the invention has been reduced to practice. Why should I be able to patent anything? The answer has little or nothing to do with the nature of things and everything to do with the purpose of the patent system. Things like business process patents and software patents have broken the system, but not because you can't hit them with a hammer and hear them go clang. |
| gus3 May 28, 2012 9:58 AM EDT |
Careful, dino, you're making a case for abolishing the patent system entirely. And there are those, some here, who would like to do that. |
| Fettoosh May 28, 2012 11:22 AM EDT |
Some amazing news related to mathematics for those who are interested. 350-Year-Old Newton's Puzzle Solved By 16-Year-Old And the solution, which is missing from the article. |
| dinotrac May 28, 2012 12:34 PM EDT |
@gus3 - I'm doing nothing of the sort, although that would be one possible resolution. Patents do solve a couple of serious problems that arose in days of yore: How do you ensure that innovation and discovery make it into the public domain? How do you insure that inventors and discoverers are motivated to invent and discover -- especially in those cases where substantial investments are required? |
| Fettoosh May 28, 2012 2:03 PM EDT |
Quoting:How do you ensure that innovation and discovery make it into the public domain? Totally eliminate granting any patents and go back to the good old days where there were no patents but discovery and innovation was flourishing every where. Many were content and happy with self satisfaction and the fame they received in history. Take FOSS for instance, do you think it is a failure? I don't think so. Take science in general, do you think it has been a failure? not at all. Many great men & women in history did just that and there is no need to count them. Actually it is almost impossible to count them. One stands out is Ben Franklin's lightening rod, when he discover it, companies kept after him to patent it but he firmly refused even though he was at the verge of bankruptcy. It there were no patents, what are the choices of inventors? a) They would keep their inventions secret for themselves. Chances are pretty good that someone else will come up with the same idea. If they implement it to benefit of it themselves, eventually someone else will do reverse engineering. b) If they disclose it, they get the fame they deserve and may be someone would pay them for its implementation. May a reward system like Nobel prize could be established and funded by non-profit organization. I think it will work just like it did for a long time before patent time. Who the heck started the patent systems any ways? wasn't the king of England? |
| dinotrac May 28, 2012 2:59 PM EDT |
@fettoosh -- You are talking about going back to a world that never existed. In the days before patents, makers of things relied on trade secrets for their protection. That definitely did not facilitate entry of knowledge into the public domain and did not support significant investment in innovation. I suppose that's OK if you want to live in an Amish world and get "medicine" in the form of leeches. It's especially ok if you want to live in a generally impoverished world where the difference between haves and have-nots is even greater than it is today. What the heck, right? The difference between a Ferrari and a Camry isn't great enough for you? Let them talk walks! |
| skelband May 28, 2012 3:22 PM EDT |
@dinotrac: Sorry, I have to disagree. What you are talking about are basically the trade guilds such as the masons and blacksmith guilds which jealously guarded their "secrets". This was all about maintaining the exclusivity of their trades and keeping prices high. If you wanted to practice masonry, you had to enroll as an apprentice, becoming qualified learning the "mysteries" and enter the "profession" and thereby to the guild. If you weren't a guild member or affiliate, you could not practice in the profession, end of. Even then though, people paid largely for services, which consists of time and expertise rather then knowledge per se which is what patents have brought us for most of the time during their existence. The original idea of patents is actually quite good. The problem is that they exist in the realm of human nature. Despite the monopoly that is afforded by patents, practitioners still hate the idea that they have to give up that knowledge and will fight tooth and nail to retain that exclusivity. That's why we see the continual extensions both in patent and copyright. I'm actually on the fence in terms of whether or not patents afford us an advantage overall. The Amish example is a complete strawman I'm afraid. Most discovery and innovation in history has been performed by impoverished loners working to scratch an itch and academics funded largely by government. And we end up in the situation that we have now in the computing industry, where patents are largely being used to stifle not encourage innovation. |
| BernardSwiss May 28, 2012 3:37 PM EDT |
The American "Founding Fathers" were also quite divided on this issue -- some thought it would benefit society, others feared it would inevitably lead to the sort of situation we have today. In the end they settled the issue by passing the buck, giving Congress the power to implement such "Intellectual Property" schemes (specifically for the benefit of society) if Congress in its wisdom should choose to do so. |
| skelband May 28, 2012 3:45 PM EDT |
@dinotrac: "...where the difference between haves and have-nots is even greater than it is today." Oh, BTW, of course we do have this situation today. In this case, the "haves" are Apple, Microsoft, Google, Oracle, Samsung, HTC and all the others that constitute the modern "upper class" if you will. The "have-nots" are pretty much anybody else that wants to enter a tech. market that don't have a veritable army of patent ammunition with which to defend themselves. Edit: and I hope the similarity with the guild situation is not lost on anyone here also. |
| dinotrac May 28, 2012 4:18 PM EDT |
@skelband - No, I am not. |
| skelband May 28, 2012 4:23 PM EDT |
@dinotrac: Perhaps you could expand on your initial point a little then? What actual examples would you cite of this pre-patent situation whereby innovation and advancement was significantly curtailed by the absence of patent legislation? |
| Fettoosh May 28, 2012 4:47 PM EDT |
Quoting:In the end they settled the issue by passing the buck... If the "Founding Fathers" had the slightest idea about the quality of present time people and congress they elect, they wouldn't have give it so much power and forced referendums instead. I really am not sure why we don't have referendums on national issues. |
| dinotrac May 28, 2012 5:21 PM EDT |
@skelband -- No. Please feel free to do your own homework. |
| skelband May 28, 2012 5:55 PM EDT |
@dinotrac: "Please feel free to do your own homework." and "In the days before patents, makers of things relied on trade secrets for their protection. That definitely did not facilitate entry of knowledge into the public domain and did not support significant investment in innovation." I did: it is written above. I'm merely asking you to substantiate your own claims. Anyone can pontificate generally about history. Putting your finger on some actual evidence is a far more difficult proposition, however. |
| dinotrac May 28, 2012 6:03 PM EDT |
Substantiate what? You said that I was talking about something -- trade guilds -- that I wasn't talking about. For such a thing, I gave you all the substantiation required: No, that's not what I was talking about. I haven't seen you disagree with my point. Do you claim that manufacturers had some way other than trade secrets to protect their investments in research and development? For what it's worth, you're the first person I've ever encountered who seems unaware of the existence of trade secrets. Have you never heard of Coca Cola? |
| gus3 May 28, 2012 6:53 PM EDT |
dinotrac wrote:You said that I was talking about something -- trade guilds -- that I wasn't talking about.You may not realize it, but when you talk about software, you're talking about math. Even if you say you aren't talking about math. |
| jdixon May 28, 2012 7:23 PM EDT |
"The problem with software is that there is no physical reality involved" Is a silly argument. Silly does not equal not true. > You claim that software is some pure mathematical entity that exists without people, Nope. I never made that claim. I claimed it existed on the same level as thought, until it was interfaced with physical reality by some physical mechanism. That could be something a simple as writing it down. It could also be implementing it in hardware. > In the end, I patent an implementation, So how are we disagreeing again? The complete system using the software can be patented, not the software itself, exactly as with you analogies above. |
| dinotrac May 28, 2012 8:14 PM EDT |
gus3 - No. When I talk about software, I am talking about software. Just as I am talking about rockets, I am talking about rockets. If I want to talk math, I will talk math. Not talking math does not preclude me from recognizing the math that describes software or the trajectory of a rocket. |
| dinotrac May 28, 2012 8:15 PM EDT |
@jdixon - Of course the software can be patented. The question is whether it should be. |
| Ridcully May 28, 2012 8:50 PM EDT |
I'd like to throw in a simple, single question: Do you agree that mathematics can be patented ? Yes or No ? In my very non-legal and humble opinion, all the rest of the arguments about software then flow from that single question. |
| dinotrac May 28, 2012 9:12 PM EDT |
@ridcully - Huh? What kind of question is that? "Agree"? I'm aware of no law that permits the pure mathematics to be patented. Lots of patents, however, that involve the application of math to real-world problems. Go back over historical patents involving the evolution of telephone switching systems and you'll see a lot of them. |
| jdixon May 28, 2012 10:06 PM EDT |
> The question is whether it should be. And the answer is no. |
| skelband May 29, 2012 1:33 AM EDT |
@dinotrac: I was questioning your implied assertion that the alternative to a world with patents was an 'Amish world' where you would 'get "medicine" in the form of leeches.' I don't believe that is necessarily true. I was merely asking you to justify that assertion, nothing more. |
| Ridcully May 29, 2012 3:39 AM EDT |
@dinotrac......"Huh ? What kind of question is that ?" A rather revealing one actually. And your response is exactly what I suspected is the case - you are aware of no law that permits pure mathematics to be patented. Personally, I'd simply say: "No. It is impossible to patent mathematics." We therefore move to the next question: "Is a software program expressed in binary, pure mathematics ?" Yes, or No. |
| dinotrac May 29, 2012 6:18 AM EDT |
@ridcully -- I am not a performing monkey, but I will go along with your charade for just a bit longer. The answer to your (silly) question is -- I've never seen any that was. |
| Ridcully May 29, 2012 7:49 AM EDT |
Umm.....dinotrac, as far as I know, ANY software program actually loaded and running on a modern digital computer is a pure string of binary digits - 0's and 1's with spaces corresponding to the byte length. I don't pretend to understand how this works, but as I understand it, machine code is pure binary and written in "lumps" corresponding to the byte length and that in turn depends on the processor and whether it is 16, 32 or 64 bit architecture. For absolute efficiency you can actually program in machine code, but it is extremely difficult to do and most programmers use high level languages to write programs in source code and then compiler software processes this source code into machine code. And machine code is, as far as I know, huge strings of binary with gaps indicating where the individual bytes begin and end. This is a simplistic view, but it has served me well so far. And anyone who wants to educate me further (or correct my concepts) on the matter is welcome. And let me hasten to assure you dinotrac, that under no circumstances was I trying to throw rocks at you in any way or even infer vaguely any "dance to my tune" - I respect you too much for that. My only aim was to see whether or not you and I saw things in the same way at the most basic level. The point I am making is of course, that such a construct of 1's and 0's is still a purely mathematical expression. What do you think ? |
| dinotrac May 29, 2012 8:32 AM EDT |
The question wasn't how the software is stored on media. The question was whether software is expressed in pure, binary mathematics. If you wish to trivialize the meaning of mathematics, I suppose you could make that claim, but then what does that mean? I could as easily say that my car is expressed in pure atoms. Doesn't get me anywhere. |
| Ridcully May 29, 2012 8:53 AM EDT |
I think it does get somewhere. If we agree that a computer program is actually a mathematical expression in simplest terms, and mathematics cannot be patented......it follows that patents on computer software should not be permitted. That is not a trivial concept, it's utterly crucial, and it is also the underlying thesis of the first post with which I started this thread. Incidentally, I believe that France adheres to the practice of not permitting software patents, and it is for that reason that just about the best video player, VLC, is produced in France. I recently saw a statement by one of its programmers that the reason they can produce that fantastic software, is that the French laws preventing software patents allow them to work unimpeded and give us all that marvellous package. Just imagine for a moment, the explosion of innovation that would occur in the USA if software patents were made illegal overnight. As Bill Gates himself has stated, if he (Gates) was trying to start Microsoft today, he could not do it due to the complete morass of software patent entanglement. Anyway......I refuse to get too despondent. Someday, somehow, the USA will follow the French path and we will all be better off - even those big monopolies that will at first scream. And atoms are physical.....mathematics is conceptual......there is an enormous difference. |
| dinotrac May 29, 2012 8:57 AM EDT |
We haven't agreed that a computer program is a mathematical expression in simplest terms. We have agreed that computer programs are usually (but not necessarily) stored as binary bits. If you want to talk about real math -- that's done in the hardware. |
| dinotrac May 29, 2012 9:23 AM EDT |
Just for fun, all you guys who are falling all over yourselves because modern computers represent data in binary form, might want to read this: http://en.wikipedia.org/wiki/ENIAC And, as an aside, remember that the real math -- decoding, logic, arithmetic -- is not done by the software. It's done by the hardware, which you seem to think differs in some fundamental way from software. Why it's ok to patent math taking place in silicon, but not instructions to perform math stored in silicon (or on optical disk or on magnetic disk, or, god forbid, even punch cards) is confounding to me. The instructions in the software are an expression of human inventiveness whereas math is, well, ,math. |
| JaseP May 29, 2012 9:39 AM EDT |
It's not OK to patent math taking place in silicon. It's OK to patent the silicon based circuit that performs the math... That's the difference. You cannot patent 2+2=4, no matter what means you use to do it. But, when some firm of equation is used as part of an otherwise patentable process that includes a general computer, the thing changes (end result). Patents are often comprised of otherwise non patentable parts... |
| dinotrac May 29, 2012 9:52 AM EDT |
Thank you very much @JaseP. That is my point exactly. Still doesn't deal with the question of whether software should be patented, but you are exactly correct. Personally, I'm torn. Patents seem to fit software for me better than copyright does, but not the current 20 year patents. The other problem with patents for software is that damned little would be protected in a world where patents were based on the kind of scrutiny they are supposed to receive, whereas copyright can be thrown on just about everything. The broad but thin protection of copyrights might just serve the business need without crushing innovation, even if software is more akin to inventions than to books. |
| gus3 May 29, 2012 9:56 AM EDT |
D@mmit, JaseP, you beat me to it. mumblegrumblegripe... EDIT: Here's my original reply, FWIW: dinotrac wrote:If you want to talk about real math -- that's done in the hardware... which you seem to think differs in some fundamental way from software. You are conflating "adding 1 and 1, and getting a result that represents 2 in whatever number base" with how the device adds 1 and 1. Again, you broaden the restrictions on copying the device design, into restrictions on how the device may be used. Decoding a JPEG is just as possible on ENIAC as it is on a Pentium 4, or an ARM, or even on pencil and paper. Same with encoding a GIF, or encoding an MPEG. The hardware may know how to add 1 and 1, but the software dictates when to add 1 and 1, and when not to. Everything a CPU does reduces to math, period. No matter what broad task the human operator(s) put to it. No matter if it's carrying out a task on "bare metal" or working through some interpretive layer. The same algorithm, given the same input, produces the same output, no matter the original language used to express the algorithm, no matter how many interpretive layers are between the CPU and the code: a JPEG encoder written in Tcl, interpreted by a Java program, compiled and executed in a JVM which is itself implemented in Visual Basic running in Windows on a 32-bit x86 is still a JPEG encoder, just as much as if it were carrying out the same algorithm in an ENIAC simulator running on a hardware MMIX. The math reduces identically in both cases. It's still math, no matter how badly some people want it to be otherwise. |
| dinotrac May 29, 2012 11:22 AM EDT |
@gus3 -- And, whether you are implementing in hardware or software, the math itself is not patentable. |
| JaseP May 29, 2012 11:35 AM EDT |
Correct, but the use of math, in algorithm or software form, can be PART of a patentable process. The problem is that the USPTO has taken the position that the algorithm IS patentable,... if done; on a computer,... or on the internet,... or an a mobile computer,... etc. Hogwash. Most software patents are not part of any patentable process. Some are (firmware blobs in a patentable piece of hardware, for example). It simply defies logic that you should be able to patent any process that begins and ends solely in a general purpose computer. The computer was intended from the beginning to encompass such purposes. It is never outside of the skills of anyone trained in the art ( computer programming) to achieve those kinds of ends. But software patents routinely encompass such things as database structures and manipulation of them... That's like patenting brush strokes of an artist. |
| Fettoosh May 29, 2012 11:45 AM EDT |
Quoting: ... It's still math, no matter how badly some people want it to be otherwise. Well done Gus3. Quoting:The instructions in the software are an expression of human inventiveness whereas math is, well, ,math. @Dino, And math isn't instructions and expressions of human inventiveness? What do you consider mathematical expressions, equations, functions, and the logic in them to be? Software is math. The difference is software to be processed by hardware and math is to be processed by human brain, which is a conceptual computer/processor. |
| dinotrac May 29, 2012 11:45 AM EDT |
@JaseP -- You really need to lose that "gotta have hardware" myopia. If the difference between patentable and non-patentable is merely the inclusion of the fact that the software runs on hardware, then there is no principled reason for requiring the hardware. That, I suspect, is why the USPTO began granting pure software patents. My patents (as an inventor, not an owner) were for a hardware/software system under the older rules, but, frankly, the hardware part was more or less rote incantation: Yeah, this stuff runs on a computer than hooks to a communication controller that interfaces with a long distance carrier. The invention -- and yes, mine embodied notable math in the form of a queuing-theory based dispatcher -- all took place in the software. The hardware was all standard stuff. |
| dinotrac May 29, 2012 11:47 AM EDT |
@fettoosh -- I would expect any decent computer geek to know that A -> B is not commutative. |
| Fettoosh May 29, 2012 12:37 PM EDT |
@Dino, You are ignoring the fact that we are talking about similarities. "If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck." |
| dinotrac May 29, 2012 1:08 PM EDT |
Except that you're talking a duck is a bird, a turkey is a bird, a duck must be a turkey. |
| Fettoosh May 29, 2012 1:32 PM EDT |
Not really, there are enough unique attribute to uniquely identify a duck, like quacking. In regards to software and mathematics, there are many attributes that they share and enough to see them as the same. Variables, Expressions, Equations, Inequalities, Functions, sets/objects and logic are among many others. Software is nothing but mathematics put in a form suitable for digital hardware to process digital & logical streams of thoughts. Artificial Intelligence (AI) is an attempt on simulating the brain in processing conceptual mathematics & thoughts. Edited: I think we aren't getting anywhere and we need a female touch to the argument. :) |
| dinotrac May 29, 2012 1:35 PM EDT |
The same could be said of computer hardware, yet you aren't claiming it to be pure math. As I think about it, the same could also be said of a blank lease. |
| gus3 May 29, 2012 1:42 PM EDT |
Fettoosh wrote:we need a female touch to the argument.Except that they saw where things were headed early enough to step away. |
| Fettoosh May 29, 2012 1:49 PM EDT |
Looking at the surface, you might be right. But, in the context of Math & Software, there is a lot more beef behind the labels. |
| dinotrac May 29, 2012 2:12 PM EDT |
Beef makes good eating, but still doesn't turn software into pure math. I am baffled that computer folk would try to pretend that software isn't real and doesn't reflect human invention and creativity. I am more baffled to hear it from free software folks, for whom the value of attribution and street cred should be clear. How many times have we gone over the various merits/faults of KDE 4? How many times have we heard about the wonderful innovations, the wonderful work being done by the development team? Is that all a lie? Did those people just use their mighty mathemagic wand to suck math out of the air and onto disk drives? |
| helios May 29, 2012 2:31 PM EDT |
but you'll never see quadratic equations blooming in the field amongst the lilies. I did once but that was years ago when you could buy little orange pills at the local hippy park. |
| dinotrac May 29, 2012 2:34 PM EDT |
Ken -- We don't talk about those days. I do have to admit they were pretty... |
| caitlyn May 29, 2012 2:55 PM EDT |
Quoting: I am baffled that computer folk would try to pretend that software isn't real and doesn't reflect human invention and creativity.I've mostly avoided this argument, but... Dino hits the nail squarely on the head here. Of course it's a creative process. Now that I'm doing more coding again I see that more clearly than ever. Quoting:but you'll never see quadratic equations blooming in the field amongst the lilies.Clearly you didn't go to the same university that I went to. Lots of the physics and math majors saw lots of interesting things. (Admission: I was a physics major.) |
| dinotrac May 29, 2012 3:04 PM EDT |
@caitlyn -- Yes, but very hard to seem them blooming amidst the lilies without a little bit of pharmaceutical help! |
| Bob_Robertson May 29, 2012 3:05 PM EDT |
Fettoosh, "I really am not sure why we don't have referendums on national issues." Because 51% believing something doesn't make it right. The American Constitutional system was designed from the outset to make actions difficult to take. Specific, enumerated powers were granted, and nothing else. In a 51% system, Parliamentary in effect, the entire method and mode of the nation rests upon a simple majority. Now if it took a referendum of 90% to do anything, that would be much better than simple majority, but it still tramples on the rights of the 10%. |
| Bob_Robertson May 29, 2012 3:09 PM EDT |
On mathematics, I refer the interested to the RSA patent, utilized back in the 1990s to try to prevent robust encryption from being used by mere mortals. A patent on a mathematical formula. |
| caitlyn May 29, 2012 3:25 PM EDT |
Quoting: Yes, but very hard to seem them blooming amidst the lilies without a little bit of pharmaceutical help!University, late '70s, hard science majors. Need I say more? |
| Fettoosh May 29, 2012 4:33 PM EDT |
Quoting:I am baffled that computer folk would try to pretend that software isn't real and doesn't reflect human invention and creativity. That was never the point I am debating. It was whether software is or similar to math. I believe other were debating the same. I always maintained that KDE 4 is innovative, creative and elegant. So is Mathematics in my opinion. Both go together hand in hand. |
| dinotrac May 29, 2012 5:36 PM EDT |
@fettoosh --Quoting:similar to math That I can buy. Some folks make a much stronger -- and erroneous -- claim. Sorry if I have wrongly lumped you in with that crowd. |
| tracyanne May 29, 2012 5:39 PM EDT |
Quoting:I am baffled that computer folk would try to pretend that software isn't real and doesn't reflect human invention and creativity. Well I'm not one of them. Of course software is a creative process, in exactly the same way poetry and Fiction writing are creative processes, and because of that should not be patentable. |
| caitlyn May 29, 2012 5:51 PM EDT |
Quoting:. Of course software is a creative process, in exactly the same way poetry and Fiction writing are creative processes, and because of that should not be patentable.I agree. However, they should be copyrightable by the author, just like fiction. |
| dinotrac May 29, 2012 5:56 PM EDT |
@caitlyn -- I think you've got it mixed up. The requirements doc is the fiction. |
| skelband May 29, 2012 5:59 PM EDT |
For my 2c, I don't really see much of a significant difference between software, music or art. Producing software is a very creative process as is mathematics. Music is fundamentally very mathematical and very creative (talking as a musician myself). That's quite apart from the separate issue of whether or not we should have copyright, but I'm not going to go down that road again... |
| JaseP May 29, 2012 6:14 PM EDT |
@Dino,... I never said anything about requiring hardware, other than to mentioned a process that begins and ends in a "general purpose computer." A specific use computer may very well be patentable. The fact that the SCOTUS has remanded cases to take into account the new ruling is especially telling. That means holding the Diamond v. Diehr case more narrowly. Certainly more narrowly than the ninth circuit has done... It's entirely possible to have a patent that is executed only in software,... but only insofar as it is a piece of a patentable process. But the kinds of software patents that have been granted?!?! Not even close... If your invention falls flat under those standards,... Sorry, but that's just the breaks... |
| dinotrac May 29, 2012 6:30 PM EDT |
@JaseP -- Sorry if I read too much into what you were saying. As to "my" -- actually IBM's patents? I think they hold up pretty well by ordinary standards. Not too shocking, though: we were inventing around patents held by AT&T. We weren't exactly trying to patent the use of a link. |
| lxerguest May 29, 2012 6:59 PM EDT |
Somebody, on groklaw I think, made an interesting point that what we call "math" may have broadened since it was originally considered non-patentable. For example 1+1=2 is a traditional mathematical operation that could be considered part of the laws of nature,as would be d/dx (5x) = 5. On the other hand, "add a,b;if c then move d;" is an algorithmic sequence of steps to achieve an outcome, which is more akin to an industrial chemical process (or a business process, as someone suggested earlier). One could argue that "add 1;add 1;move c;" is also a sequence, but it is simply answering a question,not applying laws of nature in novel ways to achieve a particular outcome. Similarly, a lever operation to lift a heavy object is also an expression of laws of nature (Newtonian physics) but the laws are used in a clever way to produce a practical outcome. Is it that important that it be a process tied to a physical machine?What about network communications systems where the machines are general purpose computers? Or programmable chips,of which the simple transistor could be considered a simple example? However considering software as a business process rather than math does not mean it should be patentable, at least not to the same degree as what we consider physical inventions. |
| dinotrac May 29, 2012 8:41 PM EDT |
@lg - I think you are exactly right WRT to the irrelevance of a physical, bangable presence. The essence of a computer is to provide an alternative to that bangable presence -- a platform that is infinitely moldable -- hmmm....like plastic or hot metal...without the cost and effort of tooling, etc. That doesn't make the inventions using the computer as a platform any less inventions than those using steel or silicon or chemicals as a platform. The right questions are: 1. Should software be patentable at all? 2. If so, what should those patents look like (how long do they last, how broad/narrow is their coverage) 3. And, how to we apply traditional standards of non-obviousness, etc, to a medium that exists to invite creation of new things? |
| lxerguest May 29, 2012 9:43 PM EDT |
@Dinotrac- 1.If we accept that a physical machine is not required for patentability, then I guess we should broaden your question to : Should patent monopolies be granted at all? Well, I suppose if company A paid 100 engineers to produce and "debug" 100 000 lines of code, they would be demotivated if company B paid 10 engineers to reverse-engineer that same code. However, maybe they can survive without patents by obfuscating the code like Red Hat, or keeping it private like Google, or differentiating themselves on the basis of expertise as the authors like the Samba team.Maybe their ability to innovate in all aspects of competition like manufacturing,business practices, and marketing,besides the slight lead time of being first in R&D, means the cost of them having no patent protection is small compared to the cost to all companies of being constrained and attacked by patent warfare. Maybe the lone inventor could do without patents by simply negotiating contracts with companies on an adhoc basis. 2.Since patents are not created equally,there is probably no one answer.How long would it take Amazon to recoup the R&D costs of innovating the 1-click Checkout, compared to say, how much your company paid you to develop your communications patent (I trust there was more than one click involved)? And how do you compare that to the high school kid who dreamed up an ingenious biological test method from his childhood of watching objects fall into a riverstream? 3.Computers do not just aid in the rapid development of software - electronic hardware and even mechanical machines are now simulated to a high degree of refinement by computers. Then, you've always got those flashes of genius like the high school kid.Maybe you need a full-time lab of "experts in the field" to test the obviousness of each patent.Goodluck |
| lxerguest May 29, 2012 9:59 PM EDT |
oh yeah,the kid won a science prize.Probably much cheaper than the cost of patent bureaucracy and lawyers,and he was happy,I think. |
| dinotrac May 30, 2012 8:19 AM EDT |
@lg - That is one reasonable question. The correct follow-on: Do patents serve their original purpose when applied to X. As to the high school kid's flash of genius: I have no problem rewarding that. |
| JaseP May 30, 2012 8:39 AM EDT |
The problem is not that patent standards do not permit this thing or that thing,... It's that the USPTO is not adhering to standards at all. The overwhelmed examiners are granting patents that shouldn't pass review. They are granting patents on things like triangulation of Bluetooth signals (what distinguishes them from other radio signals, I don't know), manipulation of database structures that have been compsci 101 since the late 1960s and early 1970s, progress bars onscreen (these haven't been around for decades?!?!), Multi-touch in a UI (what the patent on the hardware didn't cover that?!?!)... It's insane. If you are talking about patenting a (particular) method of computer speech recognition or visual recognition, I'd say you might have something valid... But a patent on exchanging social information over a network, from a "mobile" device?!?! What's distinguishes social data from business data, other than it's content?!?! What's the difference between a mobile device and a mainframe of the 1960s, except for size and a couple of parts designed for input?!?! Moving database data around and manipulating it are kind of things computers were designed for. Patents on those sort of things should have run out in the mid-1970s, at the latest. |
| Fettoosh May 30, 2012 10:36 AM EDT |
Quoting:Do patents serve their original purpose when applied to X. Quoting: Quote from: A patent is a temporary government-granted monopoly right on something made by an inventor. The historical purpose of the patent system was to encourage the development of new inventions, and in particular to encourage the disclosure of those new inventions. For applicants, patents are an attractive way to to gain exclusivity or to earn licensing income, although patents are also used as bargaining chips (e.g. in cross-licensing). The purpose as outlined in the quote above is very clear and simple, but is it still being served by current patent system? My simple firm answer is define NO. Why? because, unless you are one of the big patent holders, no one has any chance of coming up with a new invention (innovation) without being challenged by a slew of infringement law suits. Having many patents under your belt is a huge deterrent and if you don't have that, why waste time and money on being innovative and end up costing more to defend it. That, along with the cost of patent filing alone are stifling innovation more than anything else. Add to that all the revenue some companies already reaping in from patents. in the case of Ms for instance, if they get their way and are able to collect royalty from Android and Linux, why would they need to be innovative any more? For many reasons, patents are no longer serving their original purpose. They are counter productive to society and should totally be abolished. |
| skelband May 30, 2012 12:14 PM EDT |
"I have no problem rewarding that." Although I suspect that this is not what you meant, many people confuse "reward" with "cost recovery from R&D" when talking about patents. I find it confuses the issue. A similar problem exists with copyright, which is trying to solve a similar problem by trying to encourage advancement (are we trying to provide a livelihood for artists or to subsidise the costs of their work?) If we assume that a patent exists to enable an innovator to enter a market without being undercut by competitors that do not have the development costs, then we have to assume that a patent is there to level the playing field inasmuch as the original innovator is not disadvantaged by being the first. However, we also have the issue of whether or not patent is intended to "reward" in addition. Perhaps someone knowledgeable in patent law history would comment on this. If a patent is supposed to level the playing field, then clearly the duration of a patent is inappropriate for many instances and its life would extend from the time of its invocation to the time at which the first product incorporating the patented idea was marketed demonstrating that the patent had been developed. (Evidently if the patent were lodged to prevent other's use then they could hold onto it indefinitely while not using the patent in any product themselves. That would have to be addressed in some other fashion.) If a patent is supposed to offer "reward", then clearly the patent duration would extend further to give a competitive advantage over others for a period of time. It seems to me that we currently have a reward-based system. I don't really know if this was intentional, or just a blunt instrument to achieve cost recovery. However, I suggest that the debate has to start by deciding precisely which problem it is trying to solve and ensuring that the patent system is truly trying to solve it. |
| dinotrac May 30, 2012 12:24 PM EDT |
No, I meant exactly what I said.
I have no problem rewarding initiative and even luck. Patents are intended to encourage innovation and the release of that innovation to society. Covering R&D is a means, not an end. So -- why would you have a problem with rewarding people? |
| skelband May 30, 2012 1:05 PM EDT |
I don't necessarily have a problem with it at all. Although I do think that we should be absolutely clear what we are trying to achieve with patents so that the solution is appropriate to the problem. If we are trying to achieve reward, how do we quantify reward in a way that is equitable with the relatively unfair prevention of others from using the technology. Patents do not discriminate between those copying from the disclosed patent and those independently developing the technology. Remember, most technological innovations are ideas that are ripe for the invention at the time they were invented. The light bulb, the radio transmitter, applications of x-rays, the camera, the moving image projector and a host of other inventions were being developed by many people at exactly the same time. They are clever and innovative things, but a patent rewards the first, not necessarily the most deserving. If we are to reward inventors, what about all those that spent endless hours and perhaps a fortune in money, to discover that someone else was a bit quicker to the patent office? |
| dinotrac May 30, 2012 1:11 PM EDT |
@skelband -- Reward is not an end but a means, and there is no need to quantify it. It happens. Quoting:Patents do not discriminate between those copying from the disclosed patent and those independently developing the technology. That's exactly right. Patent and copyright are two different beasts. Patent law seeks to encourage people to patent their inventions. First to the door wins. |
| Bob_Robertson May 30, 2012 1:39 PM EDT |
One of the interesting things is that the rationalizations for Patent include the idea that by getting the patent the method is revealed, so that once the patent runs out anyone can use that idea. Dino mentions this above. Yet some people/firms choose not to patent in order to keep their process secret, when they believe that secrecy better serves their goals than a patent. This should be added into the consideration of the cost/benefit of patent, the fact that one of the truly laudable ideas in _favor_ of Patents is not actually being ensured _by_ Patents. If I may draw a parallel to Copyright, it is no longer required for a work to be registered with the Library of Congress for a work to be covered by Copyright. The same "good" idea as is used in favor or Patents, the moving of works into the common knowledge of humanity, isn't being served by Copyright either (this aside from its near perpetual duration which does the same thing). |
| skelband May 30, 2012 1:50 PM EDT |
@dinotrac: "Reward is not an end but a means" Yes, I agree, but my question is "Is it the most effective means?" Granting a patent for a fixed period of time across the board actually stifles innovation. All innovation is built upon the innovation of others. If a patent period is 20 years, then a new innovation that builds upon that innovation must wait 20 years before it can be used by a competitor. That doesn't sound like a recipe for fast moving economy. That sounds like stagnation. We've all heard (I presume) the oft-quoted story of Watt and his patents and the way that he destroyed progress in steam technology until the expiry of his patents. "Reward is not an end but a means, and there is no need to quantify it." WTF? Of course there is a need. Reward is the thing that sits on the other side of the balance scales from the "punishment" (for want of a better word) of all others. In order to judge the fairness of patents, then one must be equitable to the other. Patents (like copyrights, and I say that in the loosest sense) are a compromise between two different evils, those being both lack of disclosure of technology, the other being the temporary suspension of the free market by legal force. Whether we think that patents are fair depends on our judgment of this balance, the difference between the good to society weighed against temporary suspension of advancement. |
| lxerguest May 30, 2012 3:09 PM EDT |
I think when the population was mostly farmers, everyone was a producer and an inventor. Each farm had their own set of innovations to maximize efficiency,but why would you want to share your super plow design with your competitor unless you got a commensurate reward? On the other hand,society as a whole benefits from sharing technology in the form of overall efficiency and lower prices - hence patents are a natural encouragement of collective efficiency,like the public road system. Technology moved pretty slowly in those days so 20 year terms probably worked fine. For some slow-moving technologies, it may still be acceptable. For example folding bike company Dahon has patents on their folding system which is abusively copied by cheap manufacturers in Asia. Yet in America you do not see these cheap knockoffs - but you do see imitation products by licensees. This situation would seem fair to most people, Dahon is compensated for their hard work, and the patent system seems to work.(Another folding bike company,Pacific Cycle, has been claimed by some to be superior in their manufacturing quality and sophistication that cheap knockoffs of their folders cannot compete,regardless of patents,but that is a topic for further research.) In Jasep's modern examples of bogus patent grants,the system is clearly not working.As was said,patents are accumulated at a dizzying rate by large companies who use their powerful legal teams to stifle others' innovation,so the original purpose of patents is not served.I am not sure if JaseP is arguing that the patent system can be fixed by throwing more money at the bureaucracy.To me this is a losing battle,with the huge number of patent applications,lack of budget resources,and really no proof of current government being able to show good judgment on what is a valid patent. |
| lxerguest May 30, 2012 3:17 PM EDT |
Maybe come up with a specific definition or specific list of technology sectors which constitute "software"(which may include traditional "hardware" sectors like communications,if the hardware component is a non-innovative commodity),and reduce the patent term to 6 months,and let the patent office grant away. I for one would not shed a tear for any "lost" technology. Of course since the big corporations seem to be setting the agenda for all things these days,I guess we will have to wait for them to decide what they want. |
| dinotrac May 30, 2012 4:56 PM EDT |
@BobR - Patents do, however, provide a number of incentives to patent your innovations, one of which is that you could lose your own invention if somebody else comes up with it and then patents it while you are sitting on it. You could end up paying royalties on something you invented! |
| BernardSwiss May 30, 2012 5:50 PM EDT |
It's not just software patents, anymore.Quoting: Excerpt from: An open letter to our customers, past and future and here's a few links with pics and reviews: http://www.f8daily.com/Luma-Loop-Camera-Strap-Killed-Off-Aft... http://www.petapixel.com/2011/11/15/luma-loop-camera-strap-k... http://gizmodo.com/5707447/a-better-camera-sling-inspired-by... http://gizmodo.com/5462836/lumaloop-camera-strap-review-slin... |
| JaseP May 30, 2012 5:59 PM EDT |
I am not arguing that the system can be fixed by throwing more money at it. I am arguing that the system MIGHT only be fixed if reasonable standards are set and enforced. If that means no software patents that do not otherwise include some physicality, then so be it. If it means no software patents, period, fine. But, if it means more of the same lame extortion schemes, attacks on consumers and tactical business lawsuits, with the Supreme Court acting as lackeys for special interests, my vote is with radical reform, up to and including a new Constitutional Convention in the USA, if necessary,... And that might even mean violent overthrow of the government... The American Revolution was fought for little more, in terms of substantive rights. |
| Ridcully May 30, 2012 6:17 PM EDT |
And for my final comments on this matter: Hear, hear JaseP.........I agree with everything you said directly above. I'd go slightly further and simply say that of itself, patents should not be granted on software. And thankyou everybody for the most enlightening and very interesting discussion which actually did evolve from the Oracle-Google fracas comment. And BernardSwiss.....your comment almost directly above on the camera slings is "A Ripley Case" - almost unbelievable but true. To me iy's a perfect example of why the US patent system is now broken almost beyond repair. I think that the USPTO needs first to be halted in its operations, new laws on patents put in place and proper funding given to ensure proper research on prior art is given due precedence before any patent is issued. It wouldn't hurt to have the patents office linked both to Google and also to the community in general for information on prior art. It's probably done already, but my "perception" is that patents are now being dished out on absurdities and with very little prior checking. |
| lxerguest May 31, 2012 12:16 AM EDT |
Well it appears there is consensus on this thread that the patent system is broken, for software, and even non-hitech as in the BernardSwiss example. Does it translate into consensus in the iPhone-worshipping Windoze-using larger population that props up the exploiters of the current state of corruption? No more than the limited consensus on the banking scandal led to a larger boycott/political action/uprising by the confused/distracted/powerless or prescription drug-addicted majority. That is why I continue to believe that it will take large companies themselves to realize the folly of their ways for reform to take place.It would be nice if consumers economically supported the "good guy" companies, but as mentioned, there is not consensus in the general population on who that is,although it would be interesting if more corporate victims of unfair patent attacks informed their customers by direct mail like in the Swiss example. But a political revolution did not solve the deep structural problems in Greece. What helped the British through the war was the common people enabled by victory gardens.Similarly for the Soviet people during their economic crisis. Free software is like a "victory garden" to insulate me from exploitation by forces in the hitech field , my bicycle from forces in the energy field. I see community sponsored agriculture supporting local organic farms, and credit unions as an alternative to big banks. Simple things that I can control and not too complex for me to understand. I feel a sense of commonality - and self-sufficiency - helped enable the effective collective action of the democratic pioneers. I've seen rural communities mount an effective collective resistance against powerful forces that wanted to recklessly drill for shale gas and polluting their water. |
| Bob_Robertson May 31, 2012 12:05 PM EDT |
Dino, "You could end up paying royalties on something you invented!" That happens now. Patent makes no allowance for independent invention, so even though I came up with the same basic idea all by myself, the person who patented it gets to prevent me from using my own idea. |
| JaseP May 31, 2012 12:22 PM EDT |
It's worse than that,... You could very well be using some technology that is entirely based on expired patents (or non-patentable subject matter), but someone has managed to finagle a patent by twisting the language describing it in such a way as to fool an examiner into thinking it was unique. Then you are not only barred from using your own invention, but barred from using something like, let's say, the wheel (maybe an exaggeration on my part), because someone has managed to patent it. |
| BernardSwiss May 31, 2012 6:10 PM EDT |
I seem to recall a case where the woman who discovered/identified the "first" identified "breast-cancer genes" was sued (successfully) by the company that acquired the patents on testing for those same genes.(and was selling the test at something like a thousand dollars per). |
| dinotrac May 31, 2012 10:54 PM EDT |
@br -- Yup, and a big boo-hoo to you for not getting a patent and thus committing to share your invention with the world. |
| skelband May 31, 2012 11:57 PM EDT |
@dinotrac: That's a bit trite. What makes you think that the other party did not intend to patent it? You have to do *some* work before you have something that can be patented. In many cases in history (moving image photography is a key example) many inventors are on the verge of having something ready to patent. In all those cases bar one, they are wasting their time. |
| dinotrac Jun 01, 2012 7:03 AM EDT |
@skelband -- It's not unique to patents, though. You have to do some work to make a sale, then the prospect goes with something else. You have to run a campaign to win (or lose) an election. You have to expend time and money to win (or lose) a court case. And don't get me started on race horses and basketball franchises. |
| dinotrac Jun 01, 2012 7:06 AM EDT |
@JaseP - Yes. Patent examiners are people, too. If we limited human activities to those in which there were no possibility of mistake, there would be no human activities. |
| JaseP Jun 01, 2012 11:21 AM EDT |
@Dino: You're applying boolean logic to a problem that requires pragmatism. I never said we should limit the system to one that does not permit mistakes,... I just pointed out the mistakes in the system are big enough to sail an aircraft carrier battle group through. Mistakes can and will happen,... but we don't have to live with a system where the mistakes are the rule rather than the exception. The patent system is that kind of mistake, now. It worked better when everyone assumed software couldn't be patented. |
| dinotrac Jun 01, 2012 11:43 AM EDT |
@JaseP And you, my friend, are making a stipulation big enough to support the navy that battle group is attached to. When (outside of software) did mistakes become the rule rather than the exception? In the realm of software patents, mistakes are indeed the rule for a variety of reasons. That needs to be fixed or eliminated. |
| skelband Jun 01, 2012 11:58 AM EDT |
@dinotrac: "It's not unique to patents, though." I'll give you that as far as it goes. There are two problems with that analogy though: 1) With patents, it's an all or nothing thing. Firstly, we are only really concerned with business here so the sale example is only really relevant. With patents, it's like there is only one customer. You either win them, or you fail for (practically) forever. For the political example, there again, this is more akin to the patent situation. There is one artificial winner, everyone else loses. In business, there can be many winners. In sales you are not usually typically trying to sell to one customer. That would be a pretty awful business strategy anyway. 2) Again with the sales example, the winner of that particular deal wins for a variety of reasons, and (although it doesn't always work that way) the winner is largely chosen on merit. The patent system bestows the winner largely on chronological chance. This is antithetical to a free market where the winner should be the best fit to survive. |
| dinotrac Jun 01, 2012 12:27 PM EDT |
@skelband - 1. No. You move onto something else, perhaps inventing around the patent that's in your way. It's not all touchy-feely win-win, but it is how things are done and it's not exactly unknown. Human society is full of competition. Look at the bright side: at least it's not a shooting war. 2. "Largely on chronological chance?" That happens in sales, too, you know. That's what the whole "first to market" thing is all about. But...chronology and merit are not at odds with each other. If two inventors succeed in creating exactly the same invention, what's wrong with chronology as a decider? Both inventors have merit because both succeeded in making it work. There will be one meritorious loser either way. |
| skelband Jun 01, 2012 12:44 PM EDT |
@dinotrac: "But...chronology and merit are not at odds with each other." In most cases they are. Markets change and so do products. Many products that contain an innovation can be truly awful on their first cut. The business or inventor that comes up with the idea might not necessarily be the best person to implement or develop it. The market would usually determine who that was, but the technology might languish in obscurity until the patent expires, at which point it develops apace. Again the Watt steam example is key here. Few would suggest I think that Watt wasn't a great inventor, but the industry languished in stagnation until others better able to develop the technology were allowed to get at it. There thus followed an explosion of advancement. I can see the need for something like patents, but they seem a very crude and inefficient method of achieving advancement for the public good and often fail to even achieve that. Perhaps th only issue is really the balance not achieved by such a long patent period. Perhaps 5 years would be more equitable, yet I can see situations, such as in the computing industry, where even that would might be way too long to see the technology developed at the optimum rate. |
| BernardSwiss Jun 01, 2012 12:54 PM EDT |
Quoting: But...chronology and merit are not at odds with each other. If two inventors succeed in creating exactly the same invention, what's wrong with chronology as a decider? Both inventors have merit because both succeeded in making it work. There will be one meritorious loser either way. Well, the first thing that springs to mind is that if you have competing patents being submitted so closely together, then perhaps it's not so novel, or at least fairly obvious to those "skilled in the art", and in either case not the kind of thing that is supposed to be patentable in the first place? |
| skelband Jun 01, 2012 1:24 PM EDT |
@BernardSwiss: That's an angle that I didn't think of. |
| dinotrac Jun 01, 2012 1:30 PM EDT |
@BernardSwiss -- And that sometimes happens. |
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