Please see my commets below: -----Original Message----- From: Paolo Alexis Falcone <[EMAIL PROTECTED]> To: Philippine Linux Users Group Mailing List <plug@lists.q-linux.com> Date: Thu, 17 Mar 2005 01:30:41 +0800 Subject: Re: [plug] Linux trends in the Philippines
On Wed, 16 Mar 2005 23:50:28 +0800, Rage Callao <[EMAIL PROTECTED]> wrote: > On Wed, 16 Mar 2005 09:24:43 +0800 > Paolo Alexis Falcone <[EMAIL PROTECTED]> wrote: > > It doesn't work that way. Patents != Copyrights. Even lawyers would > > confirm this. Even the purpose of copyrights and patents are being > > misconstrued as being the same when in fact it's worlds apart. > > Lawyers will always argue that way. That is why a judge is needed to > resolve the differing points of view. But I agree that these two are > different. However, they do share something in common. They are both > used to protect the right of the creator of original work. > They might share the same purpose of protecting something, but what they protect, and the reason they protect that thing are just way too different. The popular mistake was to construe one that works for one class for another class - that something that qualifies for copyrights can therefore automatically be qualification for qualification of patent protection. Paolo is right in saying that patents and copyrights are different in intent and purpose. But no one is saying that they are identical. They acheive a similar purpose though - the protection of the creator's rights to benefit from his work - which is what Rage is expressing. > > Copyrights are designed to protect authors from getting their writings > > bootlegged and unduly claimed by other people. For writings to be > > copyrighted, it must be original. Patents on the other hand were > > designed to protect processes, machines, or products born of > > manufacturing or composition (read: tangible product) that would have > > to be novel and non-obvious. It must not have been part of prior art > > or an obvious variation of prior art. > > I agree. Copyrights protect against illegal copying (hence the word). > Patents protect processes, machines, etc. But both of these ultimately > tries to protect the rights of the creator. > > > Software cannot qualify for patents given these conditions. Patenting > > software would essentially lock the techniques (which are merely > > aggregation of algorithms translated into language). This is different > > from physically inventing something or doing something for ornamental > > purposes - both which patents can protect, as real products were > > produced in the process. > > They may be just aggregations of algorithms but it still required > some human intervention to happen. This act, whether founded on noble > causes or folly, is what a patent strives to protect. It distinguishes > those who apply their knowledge from those who are simply knowledgeable. > Our own society's progress is built on the aggregation and the > application of knowledge. When a technique/process is patented, it may > appear to lock progress. I don't believe it does. In my opinion, it > raises the bar. It would get us past the process of simply building, > say, a better mousetrap and instead force us to think of other ways to > catch the mouse. > Unfortunately, this can't be said of software - do note that software, while being aggregation of algorithms, is also an expression of the said algorithms. If this were the case - not anyone can aggregate the algorithms and express them as certain combinations of them are locked for the exclusive use of someone. The algorithm does not become exclusively locked. It may be used by someone else without having to pay a license if the new product beig patented shows an innovative use of the algorithm. Software does not merely express an algorithm. It must express it in a specific application which is innovative. Take the case of mousetraps. The inventor of the original mousetrap use oter prior inventions and concepts to come up with an innovation. So he made use of the knowledge of the physical properties of metals. The knowledge about how springs operate. Some knowledge about the behavior of mice. All of this knowledge are equivalent to algorithms. They are knowledge pure and simple. But the inventor put this knowledge into a specific application - a device to capture rodents. He could not patent the concept or catching rodents, or his knowledge of the properties of metals. But he did create a unique application from the knowledge. Other inventors are still free to create mouse catching inventions. Other inventors are equally free to utilise knowledge about metals in order to create new inventions. Coming back to software, Boole could not patent symbolic logic. But Univac could patent an application of boolean logic in its application to computer software since it places the knowlodge within the context of a particular application that could be used to create a product. Should someone would stumble a better algorithm on his own (and this does happen, given that it's mere aggregation of algorithms that you get to do even bigger tasks, express them into programming language, and now you have software) that would infringe on the patented combination of algorithms then that user cannot even use the better algorithm he created. The developer is then forced to use other algorithms that may not be even the best rather than the most obvious or optimal given that someone has patented a particular order of algorithms. Your missing the point. I can always apply the algorithm contained within someone else's aggregate if I am creating a new application that does something unique and original with it. Algorithms cannot be patented in themselves. The developer would not be forced to pay a for a licence. > Software are real products. It is something we interact with everyday. > Therefore, it is something patents can protect. Given this reasoning - even news articles and books would qualify for patents. Paolo, I don't think you understand enough about patents. Please check out the WIPO website here: http://www.wipo.int/about-ip/en/patents.html Rage is merely countering your argument that A prouct needs to be physical in order to be patented. The fact that something is not made of wood, metal or plastic does not render it "not-physical." A process may be patented as well and this is the sense under which software falls. A program represents a process design - a way of doing things - which required labour and thought on the part of the creator. So what you are saying is that a process may not be patented. You also cannot equate a book or newspaper article to a process. A book, article, or photograph does not need an application in order to exist. They exist upon the point of creation when the act of creation came about. A process though must shown to be workable in order to qualify. So a software designer must spend time and effort testing and demonstrating his process to show how it works and convince the patent office that it is worthy of a patent. If I were to write complete nonsense code, I could easily get this copyrighted since there is no need to show that it works. Take the first line of the poem "Jabberwocky" by Lewis Carrol: "'Twas brillig in the slithy toves." Carrol is expressing a thought here using gibberish. Under strict English language rules, this statement would have produced a list of error messages if one were to apply the rigour of programming to it. On the other hand, Carrol created a unique statement that is worthy of copyright simply because he created it. Whether or not the audience understands it is irrelevant. I could write wonderfully inventive expressions in any computer language that would not compile. But I could collect these into a book, copyright and publish it without asking anyone's permission. I might even make some money out of it if enough people would be interested in reading my gibberish. But I could not test and demonstrate these to a patent authority and expect to get anything out of it. > > It does take a lot of time and effort to generate software (I should > > now, I am in the same business). While it does not miraculously appear > > out of thin air, it doesn't qualify to be novel as it doesn't bring > > any new tangible thing to the world - but merely an aggregate > > expression of human ideas yet still within the intellectual realm. > > Concept and the application of concept are two different things. The > former, intellectual yes. But the latter is tangible. Like I wrote > above, it is something we physically interact with everyday. > Not in all cases.The concept of words is intellectual. The application of words into sentences that state a story is still intellectual, whether you write it unto paper or place it as text of a word processor document. Same goes with software - its merely an aggregation of concepts (algorithms) expressed into programming language. It still remains within the realm of the intellectual as it does not produce any new material nor transformed into something that can be physically used as a utility or portrayed as ornament. Again software must be more than a mere aggregation concepts. The fact that these concepts are applied and put together in a novel manner with benefit to someone else is what makes the software patentable. Another real world application. I can use VBScript to create a short statement to sort fields in a database. I cannot use this in a patent application simply because I am not creating something new and novel. By the same token, I cannot patent the concept 1+1=2 in any programming language. If I were to create a program which uses the expression: "A=1+1" as part of a novel application, then I could patent my program. So the existence of the concept "1+1=2" does not invalidate my patent in any way nor does it prevent others from using "1+1=2" as a concept in other processes. > > Software is just algorithms aggregated into another language (there > > are a lot of ways to combine certain algorithms, much more languages > > to express the aggregation). It still remains as one thing though - an > > expression of thought, an idea. For this case, copyright is more > > appropriate. > > Copyrights merely protect the copyrightholder against those who would > make copies of his work without his consent. Techniques and processes > which are inherent in software should likewise be protected work of the > person who spent the time and resources to conceive and develop them. > While sharing this knowledge freely and openly would greatly help the > community, the choice to do so is ultimately his own. There are many > ways of how this can be abused. But consider the alternative. Some may > choose not to share the knowledge instead if in the end they are not > acknowledged for it. But then, these techniques and processes are just born of the mathematical concepts and are just expressed into another language. It didn't change state from something conceptual to something physical. It remained still an expression of an idea. So how novel is transforming aggregate knowledge into basically yet again another aggregate knowledge just expressed in another language? It's way different from producing a real, physical manifestation of matter out of applying various algorithms, processes or scientific knowledge. The software itself may not be physical but its application will have real physical effects - numbers displayed on a monitor, an invoice being printed, a rocket being launched. So even if software may not be "physical" it exists within a physical framework with real-world effects. Trying to construe one method that works in one class of work as appropriate for another class of work is just folly. What this boils down to is that people against Software Patents fail to grasp the real intent of patents and how the patent ensures the rights of the creator to benefit from his invention. Not all software is patentable. But all software is copyrightable. It is necessary to understand this better before condemning Software Patents. -- Paolo Alexis Falcone [EMAIL PROTECTED] -- Philippine Linux Users' Group (PLUG) Mailing List plug@lists.q-linux.com (#PLUG @ irc.free.net.ph) Official Website: http://plug.linux.org.ph Searchable Archives: http://marc.free.net.ph .. To leave, go to http://lists.q-linux.com/mailman/listinfo/plug .. Are you a Linux newbie? To join the newbie list, go to http://lists.q-linux.com/mailman/listinfo/ph-linux-newbie -- Philippine Linux Users' Group (PLUG) Mailing List plug@lists.q-linux.com (#PLUG @ irc.free.net.ph) Official Website: http://plug.linux.org.ph Searchable Archives: http://marc.free.net.ph . To leave, go to http://lists.q-linux.com/mailman/listinfo/plug . Are you a Linux newbie? To join the newbie list, go to http://lists.q-linux.com/mailman/listinfo/ph-linux-newbie
