On 5/19/07, [EMAIL PROTECTED] <[EMAIL PROTECTED]> wrote:
It doesn't seem as clear-cut to me. An arrangement of transistors
is patentable. A ROM is a complex arrangement of transistors.
By implication you can patent the pattern stored in the ROM.
(I'm not referring to a PROM. But a ROM, where the wiring actually
encodes the data.)
Many decades ago I heard a rumor that IBM implemented a an algorithm
in transistors in order to patent it. At that point the patent
was claimed to cover software implementations of the same thing.
Historically I have been a chip designer. Did it for 3 decades.
I've also done a moderate quantity of software. To me the distinction
between the two is pretty hazy. One of the first tasks in defining
a new ASIC is to decide how much of it is done in HW and how much
in SW. The decision is based on cost, both silicon cost and cost
of development. Is it reasonable that we can patent one implementation
but not the other? Seems odd to me.
> That was principle we used in our work creating the Groklaw Definition
> of software patentability.
> <http://www.groklaw.net/article.php?story=20050531195311724#c322276>.
> Someday we need to clean up the buglets noted in the comments on that
> page, but I think we did manage to identify where the bright line has
> to be.
I haven't read all the comments. There are a LOT! But some of them
seem to touch on these same issues as I mention above. They look
pretty hard to address.
Oh, yeah! That was an exciting discussion, if you're into nerd law. :-)
First, if I had my druthers there wouldn't be any such thing as
patents or copyrights. Second, the particular project was aimed at the
situation in Europe at the time. Europe has a bit of a mess because
the treaty that established the European Patent Office is a compact
separate from the agreements that created the European Union. There
the relevant treaty actually forbids software patents, but has been
interpreted by the European Patent Office to stand it on its head. So
thus far no one has been willing to push a court decision on the
issue, although Microsoft's appeal of the European antitrust decision
may bring those issues to a head.
In any event, the goal of the project was to identify the line to be
drawn that is consistent with the existing treaty. Largely by process
of elimination, :-) we wound up focusing on the line between
information and the information state of a physical device or carrier
wave. It fairly captures the intent of the existing treaty but in a
far more explicit form that is far less subject to misinterpretation.
But the background legal situation in the U.S. is not all that
different. We're not in a position to have patents or copyrights
outlawed (although that would be constitutional) because there are too
many big industries to overcome to win that fight anytime soon (e.g.,
the pharmaceutical drug industry). But software patents are of dubious
constitutionality and only the Federal Circuit has held them to be
legal. At the same time, if you cross that line from the metaphysical
to the physical, you run into a solid wall of unbroken decisions since
the first patent commission was established holding that both physical
devices and carrier waves are patentable under the right conditions.
E.g., Bell's patents on the telephone. The patent laws were originally
created to allow patenting of physical inventions.
So again, in the U.S. too the line between information and the
information state of a machine or carrier wave is the most defensible
place to draw the line. I think as long as you keep your eye on
precisely where we drew the line, you'll get through the issue you
raise and the other concerns that were raised in the Groklaw comments,
although I'll freely admit that we do need to do minor tweaking to
clean up a few loose ends people identified.
So in the example you give, you can patent the information state of
the ROM and its associated character wave, but you can't patent the
information thereby stored. I realize that might seem counterintuitive
to someone with your experience, but you might consider the corollary
to your question, should people be able to copyright ROMs? I think the
proper answer is that the extent to which information is subject to
intellectual property rights should be governed by copyright law and
the extent to which physical devices and carrier waves are subject to
intellectual property rights should be governed by patent law. If you
allow them to overlap, you quickly reach the reductio ad absurdum of
the patenting of music and the copyrighting of industrial machinery.
And that is the morass into which the Federal Circuit has led us with
its software patent rulings. No one has yet come up with defensible
bright lines that allow software patents to exist and still predict
how a court would rule on a given software patent application. It's an
entirely subjective area of the law, with no objective legal tests.
And that means the only way you can find out whether a patent is valid
is to litigate the validity clear through the highest court that will
review the case. But commerce needs patent rules that can allow
decisions to be made without enriching the patent lawyers' bar.
The case seems undeniable that software patents are rapidly stifling
innovation in the software market, directly contrary to the very
purpose of patents. Software patents are now creating patent thickets
impenetrable by any but the big vendors who use their patent
portfolios to leverage patent peace agreements and patent pools that
stifle smaller competitors' entry into markets. The overwhelming
defeat of the European Commission's Directive on Computer-Assisted
Inventions in Parliament was a watershed moment that is metastasizing,
A rather amazing coalition -- of small and medium enterprises (SMEs),
the FLOSS community, software users, and activists dealing with
related intellectual property issues such as music and movie P2P
sharing, and civil libertarians -- fired a shot heard round the world.
I doubt that we would see the Supreme Court fishing for a proper case
to decide the constitutionality of software patents had that shot not
been fired. But there still remains the need to draw the bright line
the patent lawyers can understand between what is patentable and what
is not in the field of computing. That is what our project was about.
> The bottom line I think is that people might use the w32codecs in the
> good faith belief that software patents are unconstitutional, but only
> if they are willing to accept the risk of having to litigate that
> issue clear through the U.S. Supreme Court and accept the additional
> risk of losing. I believe those risks are vanishingly small for
> individual users, but do exist.
Bob Dylan said "When you've got nothing, you've got nothing to lose."
(He probably borrowed it from somebody.)
That is why the MPAA and the RIAA target people who can't afford to
lose what it takes to fight them. The same kind of thing is happening
with software via the Business Software Alliance and will probably
scale up until software patents are only a memory.
"The illusion of freedom [in America] will continue as long as it's
profitable to continue the illusion. At the point where the illusion
becomes too expensive to maintain, they will just take down the
scenery, they will pull back the curtains, they will move the tables
and chairs out of the way and you will see the brick wall at the back
of the theater." --- Frank Zappa
Yeah, I haven't had any problem seeing that wall for at least a month
or two. When you've got your career and your love life well under way
and wake up one morning in Viet Nam with an M-16 in your hand, your
draft card in your pocket, and the Big Green Weenie sticking right
where it always does, the curtain ain't ever going to obscure your
vision again. I'm still getting even. :-)
Best regards,
Marbux
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