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patentable?"
What we are saying is that they ARNAREN'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
patent lawyers dispute the denial of claim.
It's not that open source proponents are plugging their ears and yelling about
free speachspeech; 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
It is arguing from false premise to presume that just because something is
"difficult" to do and cannot be done equally well by all
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 certianly certainly go to the least thurough thorough and elegant solutionbecause fast work _tends_ to be slapdash and inferriorinferior. This isn't always thecase, but it is close enough to be aphorisimaphorism.
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 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
If, however, you perform a defense-in-detail (military talk there) and
disassemble the patents themselves, they actually fall apart into detriteus 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 spesificspecificinformation sufficent 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 amatureamateur) 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 spesific specific meaning. "Protocol on a network" is exactly asnonspesific nonspecific as "janator 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 spesific specific as "what is claimed: a janator 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 endevourendeavor. So you have a patent that spesifically 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 maliable decleration 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
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 defintion definition of"local", and then drop the subject (after some uncertian uncertain number ofconflicting qualifying assertions and defintionsdefinitions).
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 competetor competitor for
doing the same thing.
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 aquaduct aqueduct forshunting away harmful efluvent effluent during toxic cleanup) or *SOMETHING* novel orinobvious non-obvious before you would let "putting a shingle on a plank" to apearappear
in a patent as a primary claim.
sun off a... whatever".
See, if you decompose the patents they are all this acretion accretion exercise. The"one-click shopingshopping" patent doesn't invent:
they have a "valid" patent on the combination. Namely, they
apparently own:
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
being required by the customer.
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 legalizimlegalism.
Really, as a person with twenty-five years under my belt of professional
already patented or already unpatentable things in the real world. Also, ALL
software is a repetitive accumulation exterior elements that the theoretical
Consider a final example.
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 barren land, and then
brings in bales of hay?
his hay to a sheep owner?
Sounds rediculous ridiculous right? Obviously rediculousridiculous....
Software patents are this rediculous 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
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 commonailties 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 continumcontinuum, 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 therer there is magic going on. Thatthings are frought fraught with mistery mystery and full of the unknowable and capricous capricious will of
the Most Holy Intellectual Property, and that their incantations of purpose and
invention are the one true comunion communion with this great beyond.
But that's all snake oil, legalese, and obfuscation in the name of money and
As stated, we programmers understand our realm.
When we tell you that We The Programmers(tmTM) know that software patents are
unreasonable, and in the end suppressive and expensive nonsense, you should
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 wharehouse 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 discipilne discipline is punnished 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
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 roughtrough-draftstatement of intent into the hands of a govermental 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 Flemming Fleming for James Bond, andFlemming Fleming should have been allowed to prevent the publication of any spy novel he
didn't like...
anything at all.
[[Category:Patents]]
[[Category:Legal]]