On 5/20/07, [EMAIL PROTECTED] <[EMAIL PROTECTED]> wrote:
Not exactly. I am not judging whether it is "right" to be able to patent ROMs. Specifically with their content. Rather I am trying to follow the logic of hardware versus software. As I understand the original patent process, and what Marbux appears to be trying to restore, if the invention is embodied in physical form then it is patentable. Otherwise not. And I am arguing that even this line is fuzzy when examined closely.
Always happy to acknowledge error when I commit it. But I'm pretty certain we didn't this time. The line between information and information state isn't real hazy. All information is symbolic. All information states are non-symbolic. And if you tackle it from the prior art angle, there simply can be no information that was not anticipated by the designed functionality of the device or carrier wave. There are a couple of Supreme Court cases out there holding that if an invention was anticipated by prior art in any medium, then the invention is non-patentable. The point here is that software consists of nothing but recorded mental acts. The only thing software can do that couldn't be done by manual manipulation of a single toggle switch is reduction of the mental acts to code allowing the actions to be performed more rapidly. And the use of software to manipulate the information state of a data processor is plainly prior art. The point being that software is to a physical data processor as music is to a piano. Should music become patentable because the piano is redesigned to allow automatic playing of it using a roll of punched paper? The courts said no, way back when. The Federal Circuit ignored the precedent and launched us down the path of an apples and oranges distinction between "useful" and "abstract" alogorithms. Lewis Carroll could do no better.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.' `The question is,' said Alice, `whether you can make words mean so many different things.' `The question is,' said Humpty Dumpty, `which is to be master -- that's all.' <<<
> In this light, even Marbux's point about the "bright line" of patentable > and > unpatentable being between physical and not becomes muddy. As he points > out > though, the line has to be drawn somewhere. I'd argue that the physical / > not break is a fairly good place to do it, but it must also specifically > state that the patent covers only the particular physical implementation > of > the logic, not the logic itself.
I think it does. Logic is information. The line is betwixt information and the information state.
I agree. And I like your description better. "Fairly good" It isn't perfect. But we don't seem to have a lot of good alternatives. > Patents were created to protects "inventions", and it has been widely > established that software is an "expression" like math, music, art, or > literature. That's why it's already protected by copyrights. And like art, > music, and literature, software (and more generally, logic and algorithms) > are built upon the prior art of others. Each piece being a derivative of > the > work that came before it. Since patents are designed to protect "certain > details of a device, method, process or composition of matter (substance) > (known as an invention <http://en.wikipedia.org/wiki/Invention>) which is > new <http://en.wikipedia.org/wiki/Novelty_%28patent%29>, > inventive<http://en.wikipedia.org/wiki/Inventive_step_and_non-obviousness>, > and useful <http://en.wikipedia.org/wiki/Utility_%28patent%29> or > industrially > applicable <http://en.wikipedia.org/wiki/Industrial_applicability>."[2]. I > think in that portion of the definition of what is patentable is the core > of > our problem, the word "process". How do you define the difference between > a > "process" and an "algorithm"? It would be difficult to do so, and I don't > believe that the USPTO has sufficiently differentiated the two. Perhaps > they > should have left out the word process? Good example! Drawing lines between processes and algorithms makes a "distinction without a difference". They are the same. If you can patent one you should be able to patent the other. If you cannot patent one, you should not be able to patent the other.
There is actually a huge difference. "Process" was added to the Patent Act in the 18th Century, as I recall. It was unmistakably intended to apply only to physical processes, e.g., manufacturing processes. Software algorithms, on the other hand, are entirely mathematical constructs. I.e., if you look beneath the layers of abstraction introduced by programming languages, software algorithms reduce to binary maths that can act on no physical medium. Only the maths' physical notation can act on the physical data processor. That is the biggest factor that persuaded us to bore in more precisely on the line between information and the information state, between the physical and the metaphysical, betwixt the symbology and the medium.
> Arguably, the entire software patent issue is a result of monied > corporations wanting to have their cake and eat it too, which was enabled > by > a broken patent system that issued patents that it should not have. This > point of view is further strengthened by the _mountains_ of questionable > patents that have been issued in the last 20 years, for software or > otherwise. That's the real reason that this has become such a quagmire, > the > organization that is supposed to be regulating the system is so > incompetent > and self-contradictory that it breeds confusion rather than increasing > clarity. Add to this dodgy legislation like the DMCA, and the slide to > treating unpatentable "intellectual property"[3] (I hate that phrase) like > the patentable "real property" of physical inventions becomes easy and > fast, > and here we are. >
I probably wouldn't have so many issues with the software patent system if, for example, there were very harsh limit on the number of software patents that could exist at any given time, say 10 or so. But if you look at the real innovations in programming, you see an almost unbroken string of innovations freely shared with the world rather than being locked up by IP rights. What we have instead is a 300-year-old failed judicial quest to come up with a definition of the size of the innovative leap that must be presented to qualify for a patent. The Supreme Court did not come up with a solution to that problem in its most recent decision on how innovative an invention must be. It clearly told the Federal Circuit that it had been letting way too many minor inventions be patented, but didn't come up with a bright line test for the lower court to apply. It was more a "you've been doing it wrong" message than a "here's how to do it right" message. I don't think there ever will be a satisfactory legal test developed. Of necessity it would have to anticipate that which has not yet been invented. In other words, an unforeseeable situation. On "intellectual property," it is a fairly useless term. The term is used as a shorthand for a type of property right usually referring to a very limited number of types, e.g., patents, copyrights, trademarks, trade dress, and trade secrets. But there is no definition that defines which rights are referred to. And any simple definition encompasses countless numbers of rights. E.g., your right to sue me is a property right that you can sell to someone else. A better term would be "fictional rights," because all intellectual property rights are legal fictions, i.e., they describe something that exists only in the eyes of the law, with the exception of those rights based on secrecy. But even the right to enforce trade secrets necessitates the fiction that a secret once unleashed can be retrieved. And of course Law itself is entirely a legal fiction. I never met one, never kissed one, never shook hands with one, and never expect to. Law has no physical existence. There is no such thing. I like a buddy's theory that Law -- like Justice -- is only the aesthetic of social control. Like software, it is only a form of notation for metaphysical concepts. Fun discussion for me. I hope others are enjoying it too. Best regards, Marbux _______________________________________________ EUGLUG mailing list [email protected] http://www.euglug.org/mailman/listinfo/euglug
