🚀 go-pugleaf

Terry Ritter:
   Patents are also not about fairness.  Law itself is not necessarily
   fair; innocent people do get convicted.  But if we are to throw out
   Law, we must accept the results; we accept an imperfect society
   under law for the lack of anything better.

Granted, patents can be (and are) granted unfairly.  And laws in
general are often even more extremely unfair.  But the above "concept"
presents "Law" as a single cohesive entity, without internal structure
or mutability.  This view is dangerously false.

   If we throw out patents, we must accept that there will be
   consequences due to the changed economic environment.  Without
   patents, many inventions simply will not be applied in practice,
   because there will be no way to prevent a large company from
   snapping up the idea and using their superior resources to dominate
   the market.

This is about time to develop, time to market, market size, market
share, and market visibility.  Patents are a way of increasing time to
market, to bring it in line with time to develop (thus reducing the
criticality of some of the other market factors).  Patents are *not* a
good idea where they increase time to market to something like an
order of magnitude above time to develop.

It just so happens that the U.S. constitution authorizes patents for a
specific purpose (promotion of the useful arts, or something along
that line), which means that the present issuances of software patents
are not authorized.  So it's really just a matter of seeing that the
constitution is implemented.

It is true that there is some demagogary going around, about the
problems with the patent system in other fields.  There is some true
to that, but perhaps it would be better considered as "negotiating
ground" -- an attempt to present ideas which would move the patent
system away from the current practice of granting frivolous patents.

   >Every software patent I've heard of or, so far, can conceive of,
   >is inherently published when its program is published.

   Moreover, one might assume that you think that normal software
   publication (that is, trade secret publication) is better for
   society than software patents.  But the patented sections of
   software are always fully disclosed, may be studied, and may
   provide insight; some additional work may lead to other new,
   unpatented and useful techniques.

Sorry, no.  The form of presentation used in patents is inherently
less readable than object code (assuming some minor computer skills
and tools).

   As for the mental process of performing software functions, surely
   this is grasping at straws.  The very fact that programming is
   difficult is an indication of how well our bio-minds follow
   instructions; the improvement is in building machines (and
   instructions to machines) which actually follow instructions.

The invention of the computer, as something which can follow
instructions, was certainly worthy of a patent.  Applications of the
computer, in areas which can not be dealt with by standard computers,
may also be worthy of patents.  But operation of a computer, in the
manner for which it was designed, seems hardly worthy of a patent.

Consider, newer technologies, such as parallel computational devices.
(There are a couple varieties at present: parallel computers, and
neural nets.)  Their very existance make possible the solution of a
whole new class of problems.  But the present US patent office would
grant a patent for merely describing an instance of such a solution,
regardless of its [lack of] merit.

   I doubt that there can ever be a consistent legal definition which
   would separate "software" from "hardware."  "Software" is just the
   term we use to describe the practice of forming the instructions to
   be used by hardware.  Without hardware, software already does not
   infringe patents; patents are about the use of software to perform
   hardware actions.  It is these actions which are patented.

The question is one of triviality.  If the software can exist on a
standard machine, without any modification to the machine (in other
words, by operating the equipment normally), where is the innovation?

To take specific cases, the design of a bitmapped display may have
been worthy of a patent, but once it existed, the "xor cursor patent"
should not apply to it, merely because they give the same appearance.

Similarly for other cases where software and standard equipment give
the appearance of dedicated hardware -- the design of that standard
equipment should be what is considered by the patent office, not a
not an instance of software, when comparing it to dedicated hardware.

The software, one could say, is a latent expression of the hardware on
which it runs.

   Preventing the application of patents to software would imply that
   anyone who wished to get around a patent on (for example) a new
   chip (hardware) could try to reproduce the design in software
   (i.e., microcode, in a fast single-chip processor) and thus avoid
   the hardware patent.

This is only true if the "new chip" did not have capabilities already
latent in a microcoded design.  If the "new chip" were truly
innovative, a microcoded design would not be able to compete, if only
in terms of speed.

   In this way, eliminating software patents must inherently damage
   protection for hardware logic designs (including computer
   hardware).  Such protection has been a basis for the development of
   the computer industry, and elimination of such protection could
   have extremely serious consequences far beyond you not being able
   to use your favorite technique in your compiler.

"Damage" is being used here to imply that something bad is happening
by not protecting trivial innovations.  I resent this usage -- I don't
like scare tactics.

On the other hand, there is an attempt here to trivialize the current
effects of patents.  There is much more at stake here than "[using]
your favorite technique in your compiler".

Patents are currently being granted in a manner which makes it
literally impossible for a designer to limit the patent liability for
writing a piece of software.  The consequences of removing this
liability may indeed be "serious", but should be predominately
positive.

-- 
Raul <rockwell@socrates.umd.edu>