Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad (techdirt.com) 294
An anonymous reader quotes a report from Techdirt: A lawsuit brought by the world's largest patent troll, Intellectual Ventures, and handled on appeal (as are all patent cases), by the notoriously awful Court of Appeals for the Federal Circuit (CAFC) may have actually killed off software patents. The ruling came from a judge that has ruled over patent cases since the 1980s, and it appears he's been born again into the anti-software patent world. Judge Mayer pointed out that the First Amendment says that "some" patents should not be allowed. The whole concurrence is worth reading, starting with the First Amendment argument -- which is kind of fascinating in that it goes well beyond what most people had talked about in the past concerning software patents. Judge Mayer makes the point that basically all software is unpatentable because software is "a form of language," which we don't patent: "All software implemented on a standard computer should be deemed categorically outside the bounds of Section 101. ("Section 101" is 35 U.S. Code; 101 is the part that governs patents.) The central problem with affording patent protection to generically-implemented software is that standard computers have long been ceded to the public domain .... Because generic computers are ubiquitous and indispensable, in effect the 'basic tool []' of modern life, they are not subject to the patent monopoly. In the section 101 calculus, adding software (which is as abstract as language) to a conventional computer (which rightfully resides in the public domain) results in a patent eligibility score of zero .... Software lies in the antechamber of patentable invention. Because generically-implemented software is an 'idea' insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself."
I'm speechless. (Score:5, Funny)
I'm speechless. Is that patentable?
Re: (Score:3, Funny)
I don't know - can speechlessness be considered a form of language?
Re:I'm speechless. (Score:4, Insightful)
Re: I'm speechless. (Score:4, Interesting)
Is atheism a religion ?
Is abstinence a sex position ?
Is a hole an object ?
Is black a colour ?
Is 0 really a number ?
Is credit money ?
I say... this is fun.
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Yes. Atheism is a belief about the nature of god, to the point that it governs how you behave in life, even if that belief is that god does not exist. To not have a religion one must not believe anything about the nature of god. Being agnostic is much closer to not having a religion than atheism is. It can be argued that even if you say you do not know that god exists, but live your life as if you believe that god does not exist, then you are still a practicing atheist, so I'd suggest that not being
Re: I'm speechless. (Score:4, Insightful)
Your education is lacking. I was making a joke about the concept of privatives, you apparently don't know what a privative is.
Hint the answer to ALL these questions is "no". A privative means a word that describes a concept that is only defined by the absence of something else. "Cold" is a privative", so is "sober" or "dark". 0 is a bit tricky.
Oh and you are flat out wrong about the definition of atheism. Atheism is defined as the absence of believe in any god. Everybody has an absence of believe in some gods. Most people, in fact, have such an absence for all but one god. Atheists have no belief in any god. Part of the joke is that the "abstinence as a sex position" is often used as an analogy to explain how atheism differs from religion.
It's not a religion - it's abstaining from religion.
Atheist generally do not deny the possibility of (a) god - just the extreme unlikeliness (and with a fair amount of certainty that, if one does exist, no religion on this earth knows a thing about him) - but atheists believe only what there is evidence for and if they find evidence that a god exist, will believe in him. They just refuse to do so in the absence of any evidence whatsoever.
Agnostics differ by degree - in remaining open to a highly unlikely possibility with no evidence. That's like saying "Russel's teapot might exist". Sure there's no evidence it doesn't - but just because somebody can imagine something does not make it real.
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Yes. Atheism is a belief about the nature of god,
Atheism is a "religious preference". It is not a religion. A statement about the existence of one or more gods is neither necessary nor sufficient for a religion.
it governs how you behave in life
So does chemotherapy.
"Atheism" is not a specific code of conduct, nor set of values, nor "recipe for life". It is merely a statement about the existence of gods. Yes, many religions do that, but that no more makes atheism a religion than dressing up once a week to meet with friends makes LARPing a religion. It's merely an overlap with religion
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Is atheism a religion ?
If the answer is no, that means that you can conclusively prove that gods don't exist. Since gods by their very definition cannot be proven to exist or not exist, the answer must be yes. And this comes from an atheist.
Sounds more like something an agnostic would say. Atheism isn't a religion because it has no structure or anything really. Whether god actually exists or not isn't really relevant to that.
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No. But it can be copyrighted [wikipedia.org].
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I'm speechless. Is that patentable?
No, and you are violating John Cage's 4'33" copyright. Unless, of course, you are only silent for short enough periods to qualify as fair use.
interesting angle (Score:5, Interesting)
That actually aligns neatly with the current UK approach, where standalone software can not be patented but the combination of physical technology and the software needed to operate it can.
Next stop: Algorithms.
Re:interesting angle (Score:4, Insightful)
Next stop: Algorithms.
Algorithms shouldn't be patentable in Europe either as they are in the same ballpark as mathmatic formulas which can't be patented.
This could be the start (Score:4, Insightful)
of something reeeeally good! Tired of seeing all the see-saw patent wars between the big guns and the sniping by the gd patent trolls.
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Part of me thinks the judge made this somewhat out of the box ruling with the intent to push this issue that patent trolls waste millions of dollars on up the court system and see if the Supreme court can make a more universal judgment/precedent. But it begs the question, is the Supreme court technically savvy enough to understand the details of software coding and development?
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Part of me thinks the judge made this somewhat out of the box ruling with the intent to push this issue that patent trolls waste millions of dollars on up the court system and see if the Supreme court can make a more universal judgment/precedent. But it begs the question, is the Supreme court technically savvy enough to understand the details of software coding and development?
Considering that the Supreme Court has not actually approved any software patents; only the 10th Federal Circuit Courts (the courts specifically dealing with patents) has approved them. Expect the Circuit Court to overrule this judge; but expect the Supreme Court to uphold the ruling.
Even in the cases where the Supreme Court has ruled on cases involving software, they have either (a) invalidated the patent for some reason other than software (e.g Bilski), or it was not a pure software case and fund that
Finally they are starting to understand!! (Score:2)
Finally they are starting to understand!!
Slow clap: https://www.youtube.com/watch?... [youtube.com]
Sudden outbreak of common sense? (Score:2)
A check just cleared or a check just bounced.
About Time (Score:4, Interesting)
Every Patent is Expressed Through Language (Score:2, Interesting)
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That doesn't follow. A patent is described using an expression of language, but you're patenting the invention being described, not the description itself. So you can still patent stuff, you just can't patent your patent of the things you patent.
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You can, however, copyright the patent.
But once the USPTO publishes it, it probably becomes a government work in the public domain.
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I disagree. With a traditional patent of a physical item or process, it's the item or process that receives the patent. The description just, well, describes it. With a software patent, the description is what is being patented, not the physical manifestation of that description in circuits, electrons, inputs and outputs, etc that the computer uses when it executes the instructions.
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A patent should have enough detail that someone else can easily recreate the patented item.
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Easily isn't a requirement. Completely, maybe, but not easily. Not everything is even easy to do.
Comment removed (Score:4, Insightful)
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Let's say Theranos created a really slick USB device that lets a user do a blood test from their computer (stop laughing, it could happen).
Who's laughing? This already exists: [longitudeprize.org] I would hazard a guess that there are all kinds of patents around this tech. Seeing as the real innovation looks to be in the cool analog silicon interpreting DNA thing, I'd agree that the "driver" part is pretty much irrelevant.
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Please kill software patents now (Score:2, Insightful)
Want to know how bad software patents are? Read Math You Can't Use: Patents, Copyright & Software by Ben Klemens He describes how big multinational called up startup and said GIVE US FUCKING MONEY YOU BITCHES because you've violated patents 728917 9387128 and 823823 and insert more random numbe
If it holds up (Score:3)
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For me and you, you're absolutely right. However, the POTUS is probably a bit more of a concern for a woman who might need to terminate a pregnancy for some reason, a person who only has healthcare due to Obamacare, a Muslim refugee from Syria, a black person who doesn't want to get killed by twitchy cops....
Actually, just for you now that I think about it. SW Patents suck, but I've been living with them for the last 30 years of my career. However, I have a 21 year old son on anti-depressant meds. A real Obamacare repeal would throw him off my insurance, and probably prevent him from getting any new insurance due to that pre-existing condition. There's a very good chance going off those meds would lead to his death. That's a common result for unmediated depressives.
So yeah, that matters a bit more to me.
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For me and you, you're absolutely right.
No, it pretty much matters for anyone who uses computers, and for the jobs they do with those computers. So basically the vast majority of people, even if they don't realize the underlying benefits.
a black person who doesn't want to get killed by twitchy cops....
I can understand your other points, but this one doesn't make any sense. This is currently happening under a black President with a black Attorney General.
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can understand your other points, but this one doesn't make any sense. This is currently happening under a black President with a black Attorney General
Yes, as it has been happening my whole life (with 0 fanfare until a couple of years ago). Injustice wasn't just invented yesterday, and no magic vote will make it disappear today or tomorrow. It will actually require that mythical thing called "work". However, the two candidates we have now happen to have essentially diametrically opposite positions about what, if anything, needs to be done about police violence. If you happen to be a person who is personally invested in this kind of thing ceasing, it matte
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It's one judge in a sea of thousands of such judges. Don't hold your breath, skippy.
How does somebody on /. not notice that this is a conditional statement? It started with if . There is a good chance that this could be appealed, and possibly even go to the Supreme Court. If they held that software patents are invalid, then what I said would be true. Unfortunately, you can't rely on the Supreme Court to make the right decision, so I don't expect it to stand even if it makes it all the way there.
Software patents could be workable. (Score:2, Interesting)
Personally, I'm OK with software being patentable provided a couple of changes to the way they are currently awarded. First, a software patent must be truly novel to be patented. Taking something we already did without computers, and making a program that automates it should not be grounds for copyright. Also, taking something that programmers have been doing for decades and all of a sudden deciding to patent it shouldn't be awarded a patent. Perhaps the patent office should hire some actual people versed i
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I could agree with this also. If you create yet another ecommerce system you should not be allowed to patent it.
If you create a deep learning algorithm that can classify human emotion accurately based on the video camera and microphone on a standard laptop or smartphone that should be patent-able. If you create an non-linear non-gradient based descent algorithm with general case performance better than something like GA that should also be patent-able.
The kind of stuff I see as patent-able is the stuff that
Comment removed (Score:4, Insightful)
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Taking something we already did without computers, and making a program that automates it should not be grounds for copyright.
Uhh...you kind of swapped language. Definitely still grounds for copyright, not patent.
"X...but on a computer" should not be patentable unless X is also novel.
Secondly, a fully working codebase should be submitted with the patent application such that, when the patent is expired, we actually have a record as to how the patented software was actually implemented. You shouldn't just be able to describe what the software does to be awarded a patent. A fully working code base must be presented so that the patent office can determine that you've actually done something novel and that you've actually made software that does what you say it does.
The code would still be protected by copyright - and any implementation based on viewing the source code could be fought as a derivative work (see: Wine project). Knowing whether you've done something novel is seen by the generic algorithm + the results of running the software - they should speak for themselves if it truly does the job.
It's completely possible to come up with a new invention and have worldwide adoption within 2 years, and the product even often becomes obsolete within 5 years.
Which makes i
Copyright not patents (Score:2)
Could you imagine (Score:2)
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That's not where the money is. You're just going to see lots of bad clones stealing marketshare. Why would anything new come of it?
The law does things in an odd way... (Score:5, Informative)
The thinking behind having a patent law are roughly as follows (apologies for huge post, BTW)...
Innovation is discouraged where people who innovate, and pay costs for innovation, have their market stolen by others who copy them; or who are required to keep commercial secrets, running the risks of betrayal, or of trade secrets dying with them inventor (reputed to be what happened with the 'purple of Cassius' deep red stained glass).
The innovation may not necessarily be 'invention' as we know it. if you bought new techniques into your country by studying what people were doing abroad, you deserved to recoup your research costs over a finite time. You could patent an idea in the UK that had been patented elsewhere up until 1968. This is not a UK eccentricity - before international patent treaties, many other countries had a similar approach. So, the idea that a patent was something that exclusively covers something that you thought up is just about 50 years old.
The idea that you could only patent a solid object or a physical process is more recent. This change happened about 1985 to 1995. People could patent something physical, but the physical thing could include a programmed processor. Then people tried to patent the particulars of the processing side, or patent the program as stored on memory as a physical thing, usually as an additional claim as an alternative to some dedicated processor which could be patented under the previous law. I was working in Canon on patents at the time, and saw it happen bit by bit.
There is no abstract reason why patenting a non-physical thing such as an algorithm should necessarily be a bad thing. In practice, there was relatively little established prior art experience, so cunning people were able to patent things that have been common knowledge for a long time, but have no known inventor. Again, this is not new: the Gillette company was threatened in 1913 by a latter-day patent troll patenting their safety razor, which was not protected in US law unless someone could find written evidence that was acceptable in court to prove that Gillette were the owners. Gillette won in the end, but the 'Gillette Defence' is still a term for the enormous cost of proving something in court even though everyone knows it.
The patent is a restrictive rule: it restricts the rights of everyone but the inventor. We may support such laws in the short term to encourage invention and innovation, but this support should always be tempered by a reluctance to restrict the rights of others. There are exceptions to patent law that allow people to use specific drugs for other problems not covered by the original patent. This is intended to allow re-use of existing compounds, rather than requiring the invention of a second-best compound to get around the existing patents.
In then end, the case for or against allowing software patents hangs on whether they do more harm than good. The experiment since they came in is almost exclusively against them. Software is usually well-protected by obscurity for several years because reverse engineering is hard. An imitation product will always lag behind the true one, provided the product is still being developed. If you wanted a logical argument against software patents, you might argue that the Church-Turing thesis covered a machine that could calculate anything that was calculable, and so should anticipate and cover all possible programs. This judge is arguing from a different direction, but the argument has similarities, but with the human mind is replacing the Turing-complete machine, and language is replacing algorithms. Judges can't just call laws into existence, even on the grounds of extreme obviousness, but they can put put ideas such as this, and they will become law if they stand the test of time.
Let's all hope they do.
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Richard Stallman (Score:3)
Richard Stallman has been advocating this for some time. Here is an example in a Wired article from 2012 [wired.com].
What is the answer? (Score:2)
This is how it USED to be! (Score:5, Informative)
Re:OMFH!!! (Score:5, Insightful)
"software is "a form of language," which we don't patent: "
No, we copyright it. And copyrights last forever...
(so long as Disney has nickel to bribe congress to extend copyright laws)
Re:OMFH!!! (Score:5, Interesting)
As a developer, I'm okay with that.
It means I can implement the best algorithm I can imagine as long as I take the time to implement it myself.
We no longer have to invent contrived ways of to make algorithms not look like the most obvious solution just because somebody patented it.
Patents are bad for makers, copyrights are bad for users.
Re:OMFH!!! (Score:5, Interesting)
Patents are bad for makers, copyrights are bad for users.
Copyrights aren't inherently bad for users because they can be turned into copylefts. They are what powers the GPL. The user needs Free Software — not mere Open Source, which only means you can see the source, and does not tell you what you can do with it. Without software patents, Free Software would only be more powerful, and capable of doing more of what the user needs.
Re:OMFH!!! (Score:5, Interesting)
Have you seen the wars between Sun/Oracle over the Java API? Not even Java code, the Java API.
Bottom line: Copyright still involves lawyers and lawyers can think up reasons to make you miserable no matter what common sense says.
b) Usually the lawyers with most funding will win.
Re:OMFH!!! (Score:4, Interesting)
Not to mention that oracle deliberately hid discussions left behind by sun pre-acquisition that granted google permission.
Re:OMFH!!! (Score:5, Insightful)
Still not *nearly* as bad as patents though. Even a copyrightable API simply means you can stop me from building a software library that's a drop-in replacement for yours. It stifles competition, but not innovation. Google could have easily made Dalvik use a different, but functionally equivalent, standard function library, it would have just made it that much more difficult for Java programmers to adapt to using it.
Patents mean you can stop me from distributing software that's completely my own design and work, even if I never knew your software existed, or even if you never wrote any software at all, just because it uses ideas that you also had, and managed to get accepted by the patent office.
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>
Patents mean you can stop me from distributing software that's completely my own design and work, even if I never knew your software existed, or even if you never wrote any software at all, just because it uses ideas that you also had, and managed to get accepted by the patent office.
That's true.
OK, it's a huge difference if this becomes accepted as law.
It's very unlikely that an independent developer would write exactly the same code or create exactly the same API as something else that already exists.
Re:OMFH!!! (Score:5, Informative)
Yeah. It's too bad this was a concurring opinion rather than the majority opinion, and thus apparently doesn't establish precedent.
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Plus, copyright is still subject to 'fair use' exceptions. So no loss on the API front.
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Copyrights are not bad for users in the long run.
Without a copyright on software... There can be a bunch of ripoff copies copied blindly where the software provider will have no way of supporting it.
GPL is a form of copyright. Where the maker expresses their will for the code to be shared and altered. Without copyright on software that would allow people to misuse GPL code, without any form of recourse.
Also giving the creator control of their creation will allow them to create more. Otherwise you can inves
GPL == discouragement (Score:2)
The GPL does not encourage copying and sharing. The GPL is a source of discouragement: it serves to lock out various kinds of sharing, specifically, if I add something to the code, I cannot share the results of that work unless I give away my work on it. It's nothing to do with the sharing of what was ou
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Exactly - it encourages *you* to copy and share *your* code, with the incentive of being able to incorporate any and all the GPL code in the world if you do so. If you just want to leech off someone else's work without giving anything back, well that's what BSD and the pubic domain are for. The GPL and other share-alike licenses are used by those who don't want to support parasites.
It also encourages users to freely share the unmodified finished product, as it puts no obligations on them beyond pointing p
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As a developer, I'm okay with that. It means I can implement the best algorithm I can imagine as long as I take the time to implement it myself. We no longer have to invent contrived ways of to make algorithms not look like the most obvious solution just because somebody patented it.
While I agree copyrights are better suited to protecting software, there has to be an allowance for the software equivalence of fair use. For example, if you an I independently come up with algorithms that are very similar, or identical, neither of us should be able to make a copyright claim against the other. There needs to be clear guidelines that say x% of similarity is OK but if there is more than you may be violating someone else's copyright. screens and displays are a bit easier to decide since design
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There needs to be clear guidelines that say x% of similarity is OK but if there is more than you may be violating someone else's copyright.
I think copyright already has some amount of "fair use" in it. At one point during the famous SCO vs. Linux lawsuit, some header files were contested because they were identical. Given their content (essentially some constants defined in a publicly available book), the header files were not considered copyrightable because, essentially, there is no reasonable way to make the header files any differently; any independant implementation would end up looking the same. If you and I independantly come up with th
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There is - the fact that copyright only covers explicitly doesn't cover ideas or functional aspects. They cover only the specific presentation, not the information content. A cookbook publisher can for example copyright a particular presentation of a recipe, but NOT the recipe itself.
Algorithms, being functional, are ineligible for copyright, so in the absence of patents I can safely use the same algorithm as you without restriction - even if I had to decompile and reverse-engineer your code to figure out h
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Unlike copyrights, patents expire. (Score:4, Informative)
Copyrights give lower level of protection for lower level of innovation and creativity. Whereas patents give higher level of protection for a much higher level of innovation. [...] As a creator, I want the strongest protection, whatever is applicable.
After twenty years, patents give zero protection.
If someone reverse engineers your software and then re-releases it as his own I'm guessing you can still sue for damages.
On what legal basis, other than patent infringement?
Nonliteral copying. It worked for The Tetris Company [slashdot.org].
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As a creator, I want the strongest protection, whatever is applicable.
Neither copyright nor patent gives you that at the moment.
Could you mount a lawsuit against a big company? Protecting yourself requires money and time. The government isn't watching your back and sending the police around to arrest violators, you have to do all that yourself.
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On what legal basis, other than patent infringement?
Copyright infringement, of course. You did put "you can't reverse engineer this" in the licence, right? Absent the licence, there is no legal reason why said reverse engineer is allowed to have your code.
Re:OMFH!!! (Score:5, Insightful)
>Any half-assed hacker can reverse engineer your code
Reverse engineering is, in fact, one of the hardest forms of engineering and projects that reverse engineer are generally filled with some of the smartest brains we have- because it's very hard. You think the wine devs are idiots ? Yet it took them more than decade to get out of alpha !
>He can then replicate your software in 1/10th the time it took you to develop your software
If what my software does is so simple that somebody can replicate it in 1/10th the time it took me to do it - then he's the better programmer and he deserves to win in the market place. My best defense, in fact, is to use a free software license in the first place - so it's to his benefit to rather add his features to *my* product where we can both profit than to go and create his own. Even then, sooner or later even the greatest code gets replaced by better stuff. By your reasoning - it was a horrible thing that nginx was developed because apache came first ? The fact that nginx does the core jobs apache did with a far more elegant design and has become the dominant product by being better doesn't matter ?
You must be truly incompetent as a programmer if you are *this* afraid to compete on the merits of your product - that even with a first-to-market advantage you are this convinced any "half-assed-hacker" can make something better than you did... it sounds to me like, rather than wanting patents to put a dead-weight on the global software economy - you may be better off seeking a different career, one more suited to your particular talents - none of which, apparently, involve writing software.
>exactly the the reason patents exist
No. That is not at all why patents exist. The reason patents exist is right there in the law. To promote open disclosure of how an invention works. Quite the opposite of what you think - it's to make sure you will have MORE competitors than you otherwise would. The reward for letting the world copy your invention, is having a brief time where nobody is allowed to. One of the major problems with software patents it the absolute lack of disclosure actually - I've yet to read a software patent include full source for an implementation of the idea - and nothing less than a working source implementation can count as 'blueprints' for a software program.
>Software is not languages. Software uses languages
Novels are not languages. Novels *use* languages... so by your reckoning I'd best run off to the patent office really quick to patent "Romance novels. Soft-porn for housewives with sloppy plotlines and lots of sex scenes using vague euphemisms" before somebody else does ! If nothing else - I may be able to sue Barbara Cartland's estate to oblivion. Hey it's first-to-file - who gives a fuck that she died after spending 50 years 'inventing' romance novels before I got the patent right ?
> you can program software using 1s and 0s. Which language was used there?
That would be mathematics. Which is, in fact, a language - and unpatentable all by itself anyway. You may want to study computing theory - if you think software is anything but NOT pure and unadulterated mathematics on every level it's because you don't actually know what software is. Only what we try very hard to make it pretend to be.
> Technology often consists of processing steps, which are patentable
Having to disclose the steps involved in using a machine does not make the steps themselves patentable. Which is the most charitable way to interpret the complete bullshit you just spouted. No, 'technology' consists of real, physical things - machines and devices. Processing steps - a completely abstract set of ideas is not and has never been patentable, software was an abberation in this regard - and the Alice verdict was basically the supreme court telling you just that.
> and so should software.
So what are you ? Patent lawyer ? Patent troll ? Since those are the *only* people who have ever benefited from software patents. No prog
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You, sir, merit mod points which I am lacking at the moment.
Also, I would like to subscribe to your newsletter.
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Seconded!
Re: OMFH!!! (Score:2)
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FORTH
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Nthed.
Interference != novelty (Score:3)
I'd best run off to the patent office really quick to patent "Romance novels
I think a business actually tried "plot patents" and got shot down. See "What's the Story with Storyline Patents" by Ben Manevitz [cardozoaelj.com].
Hey it's first-to-file - who gives a fuck that she died after spending 50 years 'inventing' romance novels before I got the patent right ?
The "first to file" change affects only "interference", or conflicts between two patent applications. It does not diminish requirements under "novelty", or conflicts between a patent and published documents in the prior art.
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Any half-assed hacker can reverse engineer your code
Reverse engineering is, in fact, one of the hardest forms of engineering and projects that reverse engineer are generally filled with some of the smartest brains we have- because it's very hard. You think the wine devs are idiots ? Yet it took them more than decade to get out of alpha !
Part of that, mind you, was because they had little to no money and were working part time. How do you think Zynga cranks out their own versions of whatever the hot new game on the App store is in two weeks? Because they've got a team of a dozen full-time paid programmers reverse engineering the code.
Perhaps OP's hyperbole should be toned down to "any company with sufficient resources and motivation can reverse engineer your code," which, I'm sure you'll agree, is true.
>He can then replicate your software in 1/10th the time it took you to develop your software
If what my software does is so simple
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>You just need a human being to fill in variable names, function names, comments etc.
You mean the hard part then - the part that converts a bunch of cryptic functional steps into a conceptual model that can then be learned from so that you can write your own software using the same concepts, but none of the decompiled code. Because after all the decompiled code is a trivial derivative work of the original, and thus fully protected by copyright. As would any code that simply "paraphrases" the original c
Purpose of the system (Score:5, Insightful)
The patent system isn't in place to keep B from profiting from A. The patent system is in place to, and I quote,
So first, to address your concern: can software authors profit from a truly new software idea without software patents? Sure we can. The software industry thrived prior to software patents. We can see by the "limited times" portion of the above that unlimited profit was not the goal. The inventor was to benefit somewhat, so society could benefit. So the question I would ask here is, do patents really benefit all authors and inventors? I think it's pretty clear they benefit all wealthy authors and inventors, and screw the small ones sideways with barbed wire. But that's just my opinion - as a small author and inventor.
Second, without patents, can science and the useful arts progress without software patents? Same answer: Yes, and that was also made obvious by the time prior to software patents, and for that matter, by the progress made since then by those who have not availed themselves of the patent system.
Third, can you "secure for a limited time the exclusive right to software author's respective writings and discoveries"? Yes. Copyright takes care of the writing end, and rather overwhelmingly at this point. You wrote the c code, and if someone takes it, you can show that. In addition, a new invention can't be reverse engineered until it's public, which points emphasizes the value of both trade secret and secure development.
Finally, I contend that patents, as clumsy, difficult, expensive legal procedures prone to repeated trips through the courts, are a tool that provide considerably more leverage to large, wealthy players than to "authors and inventors", and as such, they do more harm to the general level of creativity and useful conceptual churn than they are worth to society in general, which is clearly the actual goal of the above constitutional clause, as specified by the opening: "to promote the Progress of Science and useful Arts".
I think the judge has it right.
Sadly, this was a concurring opinion, not a majority opinion, and as such it has no legal weight. Those of us who agree can only hope that his concurrence serves as a springboard for (eventually) convincing the others on his bench, or that the case is appealed to a higher court, and such convincing happens at that level, despite being completely free of incoming legal weight. I wouldn't hold my breath, frankly. Big money has a way of tilting the playing field rather consistently. But it's a single ray of light in an otherwise very dark situation, and I'm happy to admire it.
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"you can program software using 1s and 0s. Which language was used there? No language -- it's a sequence of numbers"
Why's a sequence of symbols not a language in that case
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What the hell do you think a language *is*, other than a set of symbols and rules for manipulating them?
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I agree
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Software is not languages. Software uses languages -- you can program software using 1s and 0s. Which language was used there? No language -- it's a sequence of numbers. Software languages exist to simplify the translation of processing steps into 1s and 0s, which is the actual software. Technology often consists of processing steps, which are patentable, and so should software.
It seems it depends on one's definition of language. Language is used to convey information. It's just a sequence of letters, or sounds. So it could also be a sequence of numbers as well. Indeed, you could replace the alphabet with numbers 1 - 26 and it would still work, as long as people learned the new system.
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> Any half-assed hacker can reverse engineer your code
You have just described WHY something shouldn't have been granted a patent to begin with.
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If someone changes the names of the characters in Harry Potter and then tries to publish, he'll get laughed out of the publisher's office because it's still plagiarism.
Copyright affords plenty of protections, but would still allow competition where patents stifle competition.
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you can program software using 1s and 0s.
No, you can't.
At worst, you've just got a big number.
At best, you have a programming instruction that's represented in binary symbols rather than some other kind of symbols.
Back in my 6502 days, I used a disassembler where I entered the hex instead of the assembler instruction names; hex "A9" is functionally identical to asm "LDA", which is functionally identical to binary "10101001". "1010100" was nothing, not was "010101001". Only when used in some specific combinations of 8 bits did the bits actually do
Re: OMFH!!! (Score:2)
It's exactly like English works, the meaning of pedant does not come from p+e+d+a+n+t and not all combinations are valid. If you can't program computers with 1s and 0s you can't write English with a-z. You can't learn English from looking at a keyboard, but nobody claimed you could learn to program from knowing it's all 1s and 0s. Except you, in the strawman you cut down.
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And strictly speaking those would be patentable if they weren't already clearly in the public domain.
With that argument, you could say that anything using screws to hold it together isn't patentable.
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Copyright is also much more stringent than patents. Software *should* be under copyright, and absolutely not patentable.
Re:OMFH!!! (Score:4, Informative)
In order to copyright it you have to publish. Binaries aren't subject to copyright.
Not true, in the U.S. something is copyrighted the moment it is created.
In order to get statutory damages and attorney fees, a work must be registered with the Copyright office.
17 U.S. Code 412 - Registration as prerequisite to certain remedies for infringement
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—
(1)
any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2)
any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
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In order to copyright it you have to publish. Binaries aren't subject to copyright.
Not true, in the U.S. something is copyrighted the moment it is created.
A finding of copyright infringement requires that the alleged infringer have had access to the copyright owner's work. Perhaps one might capture the essence of "you have to publish" as a proposed amendment to the copyright statute to presume lack of access in cases where the alleged infringer lacked access to source code (which the GPL defines as the preferred form of a work for making modifications to it). One possible exception is if the program's output separately qualifies for copyright as an audiovisua
Re:Definition of technology flawed (Score:5, Informative)
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And a boat cannot do a damned thing unless it is placed in a river. What does that have to do with anything?
Wrong.
A boat may not be useful without being placed in a body of water (ocean, lake, river, etc); but it can do something.
For instance, you can sit in it; you can run the engine(s) if there any are present; you can move it about using a trailer, fork lift, or other means. Alternatively, you could throw a party on it - if there is sufficient space, or even live on it - even out of water.
Comparatively, with software if it not compiled for a specific computer, then it is no more useful than a book - y
Re:One month every four years. (Score:5, Informative)
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Thus, to have Judge Haldane Mayer do an about-face on Software Patents is Huuuge, in part because of the influence the Federal Court of Appeals has on lower courts, but mostly since it shows that learning can take place at that level, wh
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Thus, to have Judge Haldane Mayer do an about-face on Software Patents is Huuuge, in part because of the influence the Federal Court of Appeals has on lower courts, but mostly since it shows that learning can take place at that level, when presented with cogent arguments.
Perhaps there is hope, after all.
It certainly is a good sign. The Alice ruling is key since it provides him with a basis for his opinion and the Appeals Court can use the SCOTUS decision and clarify and extend the boundaries of what is not patentable. Ultimately SCOTUS may have to weigh in on the boundaries established by the Appeals Court and say yay or nay. Which wold be good since there would be more clarity around patent law.
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You're saying that what you're PROTECTING is the language used to describe the invention. As such, design patents (e.g. buttons, curved corners) etc. aren't affected. Mechanical patents also.
But patenting "writing a bit of software to do X", for any particular X, which is what software patents are about would be like trying to patent "using English to describe this procedure". Which is - quite rightly - unprotectable.
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Again, you're welcome.
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It doesn't. This change is based on a supreme court ruling from last year. Prior to that the supreme court precedent was different.
CIvil cases don't get retroactively affected by a change in the judicial interpretation of the law - it only affects new cases going forward.
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Especially because in most cases, settlement agreements require you to forfeit your appeal rights.
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That are still protected by copyright.