Software Patents

derived from a user post at GrokLaw

Patents vs Copyright in idea-space

Authored by: BitOBear on Tuesday, September 14 2004 @ 08:46 PM EDT A previous poster asks "if these things are so obvious, why are they patentable?"

What we are saying is that they AREN'T, or at least SHOULDN'T BE patentable because they ARE obvious to professionals in the field.

But the patent office isn't a professional in the field of software, and neither are the examiners; or perhaps as another poster would have it, neither are the appeal agency (council whatever) that gets to override the examiners when the patent lawyers dispute the denial of claim.

It's not that open source proponents are plugging their ears and yelling about free speech; it's instead as if the well-monied interests decided that songs should be patentable. See, songs are "obvious" (kind of) once you have sorted out the parts that arn't unique. That doesn't mean, by any stretch of the imagination that all song-writers are equal or that, given the same basic idea for a song, that all song writers would write the *same* song, or even songs of the *same* quality.

It is as if the first person to patent "a method of expressing the desperation of star-crossed lovers in verse" should somehow "own" that stricture and so would be equally be able to sue Bobby Gentry for "Ode to Billy Joe" and Tommy Tutone for "8675309/Jenny" for equal infringement of the core idea.

It is arguing from false premise to presume that just because something is "difficult" to do and cannot be done equally well by all practitioners, that the first person to make a workable statement of the idea deserves some ownership of the domain.

Because the award goes to the "first" and not the "best" expression, we are in the race to be first. It naturally follows that the patent will almost certainly go to the least thorough and elegant solution because fast work _tends_ to be slapdash and inferior. This isn't always the case, but it is close enough to be aphorism.

In the back-case, a lot of things have been worked out over time and so are in the common pool of knowledge that nobody ever patented. Some Joe comes along and sees that there isn't a patent on the idea and files one. Because we live in a society where "simultaneous" and "at the same time" may not mean the same thing, the prior art isn't prior art because of, lets face it, legal spin.

If, however, you perform a defense-in-detail (military talk there) and disassemble the patents themselves, they actually fall apart into detritus even under _current_ patent theory. That is when you apply the real-device patent rules to software, the software patents don't hold up because of some key points.

1) The patent is supposed to describe an (singular) invention, with specific information sufficient for a practitioner-in-the-field to recreate the invention so described. You will never see this in a software patent. First, these patents don't describe a specific invention, they are broad and mushy, and a software professional (ANY software professional, or even an amateur) would tell you that the claim stating "a protocol, usable across a network, which causes the system to act as a server to a number of clients" doesn't actually say a darn thing. In software design "protocol" "server" "client" and "network" are generic words that have no specific meaning. "Protocol on a network" is exactly as nonspecific as "janitor in a school". When a lawyer reads such a claim it *seems* to mean something, but when a programmer reads such a claim it is as specific as "what is claimed: a janitor in a school that allows clean up of a mess made by students or faculty." That is, it is a statement of intent, not a description of action. It's set dressing. The problem is, *all* the claims end up being general set dressing, and so can apply to whole ranges of endeavor. So you have a patent that specifically says nothing, and generally intimates all sorts of things.

Is classic dirty fingers, the patent casts hearsay-like aspersions over a range of activities without actually pinning itself down to meaning anything in particular. Such a malleable declaration can be twisted to mean anything. If they were contracts they would all be thrown out of court for being vague. In point of fact, software patents are "very SCO" for being subject to meaning whatever the speaker chooses to infer at the time.

You are dealing with an industry where, if you were to ask "what is a 'LAN' and when does it become a 'WAN'?" of a large group of professionals, they would have to honestly reply that it depends on your definition of "local", and then drop the subject (after some uncertain number of conflicting qualifying assertions and definitions).

2) You cannot patent combining two (or more) elements, if those two elements persist in doing the same job they always did. This is a SCOTUS decision from the fifties (?) about the grocery store that put a conveyor belt next to a cash register and then patented the combination, then tried to sue a competitor for doing the same thing.

This should, but apparently doesn't officially, create a sort of "comparison and filtration test" for patents. One would *think* that any claim that is a common object performing its normal task, that that claim couldn't be considered "primary to" the invention described.

Consider: a method where "a procedure whereby a hammer is used to force a nail through a shingle and a board as an element of constructing a roof". The claimant IS NOT claiming to have invented the nail, the shingle, the hammer, the force, or the board, or the roof. Just the procedure of performing the acts on the objects to create a final result. In the real world this is somewhat obviously absurd. This is an exact example of A Business Method (e.g. software) Patent". One would expect to find a patent containing a "new means" (e.g. gluing instead of hammering) or a "new material" (space-age polymer tar-paper) or a "new goal" (inverting a classic roof construction technique and materials to construct an emergency aqueduct for shunting away harmful effluent during toxic cleanup) or *SOMETHING* novel or non-obvious before you would let "putting a shingle on a plank" to appear in a patent as a primary claim.

With software, when you know what you are reading, You constantly see the software analogue of "shingling a roof" just with a codicil like "to keep a pet dry" and somehow this is different from "shingling a roof to keep a carpet dry" and "... to keep a wall dry" and then the whole thing again "to keep sun off a pet" and to "keep sun off a... whatever".

See, if you decompose the patents they are all this accretion exercise. The "one-click shopping" patent doesn't invent:

- the internet - the browser - the button - the web page - the store - the store on the internet - merchandise - e-Commerce - logging on to a system - the button - the "WHEN keystroke/button DO action" methods - the "having an account" at a store - the "having an account at a store on the internet" - the keeping of credit card information for later purchases - the keeping of customer shipping information by a retailer - the "put it on my tab" concept between buyer and seller - the concept of *NOT* asking "are you sure?"

OK, so we can agree that Amazon.com didn't invent any of the above. Any yet, they have a "valid" patent on the combination. Namely, they apparently own:

- (paraphrased) setting up an online shopping environment where once a user has logged in and entered his credit card information and shipping information and begins browsing the site, a product displayed for sale may, on the page where it is displayed for sale, have a "buy it now" button; when the customer clicks this button the product will be automatically charged to the listed credit card and sent to the shipping address of record without further action being required by the customer.

• THAT* is a *VALID* and PATENTABLE "invention"? I think not. But

there it is on the books and upheld in a court case, because the patent office let it through and the trier of fact and the jurists were bulldozed over by "seeming complexity" and legalism.

Really, as a person with twenty-five years under my belt of professional computer work (first using, then programming, then designing software etc) I can honestly say that I have *yet* to see a software patent that should exist.

If there were a rational legal filtration test for software patents, the overwhelming number (that number being all, or so nearly all as to make no difference) of software patents that would-or-should fail that test, would bring to sharp and instantly understandable relief, the folly of the concept.

Software isn't patentable because the things software does directly model to already patented or already unpatentable things in the real world. Also, ALL software is a repetitive accumulation exterior elements that the theoretical claimant has no "property right" to in the first place.

Consider a final example.

A man with a sheep set's his sheep to grazing in a field. He finds this beneficial in several ways, and patents using grass to feed sheep by exposing that sheep to grass and then not preventing the sheep from eating that grass.

Does the guy who wants to graze a cow have to license the sheep grazing patent?

Does the guy who invented the fence, have to pay the guy who invented sheep grazing, if he uses his fence to "focus" his own sheeps effort by fencing his pasture?

What of the guy who puts a fence around his cow?

What of the guy who puts a fence around a cow, but on baren land, and then brings in bales of hay?

Does the hay farmer need to license the sheep grazing patent in order to sell his hay to a sheep owner?

Sounds ridiculous right? Obviously ridiculous....

Software patents are this ridiculous to programmers. We have basically four operations add, remember, compare, and jump. Every computer program is made up of these four operators. Oh sure, over the years compare and jump-backwards became loop, and add and loop became multiply, and so on, but we all more-or-less understand that these four basic operations are still the core of it all. The hardware supermen know that, depending on the chip, there are actually only two operations "AND-and-NOT" or "OR-and-NOT". We naturally know that letter and digits and colored dots on the screen are actually numbers, and we manipulate those numbers. We know that there is (in software at least) no difference between remembering a number for one purpose and remembering it for another.

In short, we understand our realm.

In the other direction, there are power users who kind of understand these things about these operations. And then there are the computer technology fans that don't care about the commonalities and just want to shoot daemons in the latest game and browse the net.

And you'd think that this would be the complete continuum, but it isn't. There is a whole technology priesthood of businessmen and their henchmen lawyers (sorry guys 8-) who want you to believe that there is magic going on. That things are fraught with mystery and full of the unknowable and capricious will of the Most Holy Intellectual Property, and that their incantations of purpose and invention are the one true communion with this great beyond.

But that's all snake oil, legalese, and obfuscation in the name of money and power-over-money and "recouping expenses" and "new business paradigms" and god only knows what else.

As stated, we programmers understand our realm.

When we tell you that We The Programmers(TM) know that software patents are unreasonable, and in the end suppressive and expensive nonsense, you should believe us. We are the "professionals skilled in our arts". And when our dissenting minority yell, "but no, how will I protect my IP?" you should look on with jaundiced eye, because "(his) IP isn't probably anything more than a regurgitation of common knowledge" with, if he's really good, a dash of artistic inspiration sprinkled on top.

Until the software patent is killed (and probably for that matter the "business method" patents on things like how Dell moves its boxes around in its warehouse 8-) as a CONCEPT any economy with these practical but vague monopolies on undefined domains of thought, will extort a HUGE "cash entropy cost" on you and I and everybody else even remotely involved.

=

So where was the "vs c=Copyrights" part? Its that inspiration in the regurgitation. Software innovation isn't invention, its art. It is a well disciplined art because poor discipline is punished by core dumps and the Blue Screen of Death. But it *is* (for all that I have a degree in "Computer Science) just art. Bad artist make bad art, and bad programmers make bad programs.

The entire reason that Copyright only protects the particular expression of an idea is so that good but slow(er) and young(er) artists don't have to pay because a fast(er) or old(er) artist beat them to the canvas.

So software is squarely and undeniably under the auspice of Copyright because a programmer or company deserves the protection of their effort at expression, but they DO NOT DESERVE TO OWN the ideas because they got their rough-draft statement of intent into the hands of a governmental agency first.

We write software. We write books. IF programmers should be able to patent software, then authors should be able to patent their books, and every spy novel ever should have had a 20-cent duty paid to Ian Fleming for James Bond, and Fleming should have been allowed to prevent the publication of any spy novel he didn't like...

Profiteering aside, this is just the way it *has* to be if it is going to be anything at all.