a computer program is not a patentable invention

[terryc]

A patent is a commercial document with a limited life. At the end of
some exclusive rights the originator puts the idea in the public domain.
Those that cheer the dropping of software patents may find that
copyrights are far more protective of creative work.

If someone copyrights a piece of code which uses variable A,B & C and I
copy that code, but change to variable X, Y & Z and re-order the
unimportant steps, then how does copyright stop that?

 

[Jon Kirwan]

Two examples, both I have mentioned. Music industry and
book publications both covered by copyright. Photography
copyrights have a large body of law related to cloning and
copyright ownership.

These are all cases where copyrights are used for IP
protection.

I wasn't thinking so much about analogy to other business
areas _within_ the North American continent, but to the same
business areas outside of it. Which is why I asked though
you had provided such examples.

I'll stop asking, now.

The earliest software patents (late 60's early 70's) required
that a hardware implementation be part of the patent.

Yes. Thanks for that reminder.

Jon

 

[Jon Kirwan]

I wasn't thinking so much about analogy to other business
areas _within_ the North American continent, but to the same
business areas outside of it. Which is why I asked though
you had provided such examples.

I'll stop asking, now.

I'm saying that since I was sincerely interested in what you
might know about this, not about being put in the position of
badgering. Beyond a point, that is what it becomes.

But I should clarify what I said above, as accepting the end
of a conversation but not being clear about why might be
misread. You made a point that made me wonder, namely that
eliminating software patents would make things stricter,
writing "Dropping software patents may result in software
protection with teeth." I don't know much about books, but I
don't recall patents ever being significant there. My
recollection is that copyright has dominated as far back as I
can remember, in varying ways. I certainly do not know how
to translate that experience. What would be useful to
someone as ignorant about law as I am would be a
demonstrative example of "protection with teeth" in a legal
environment that exists elsewhere in the world where software
patents do not play as significant a role as they may in the
US which makes your point.

What confuses me about your writing here, and it does appear
to be internally inconsistent to me from my legally ignorant
point of view, is that you also _seem_ to simultaneously
assert that patents don't make anyone money and in the two
cases you mention the situation has been changed, anyway, so
that it wouldn't work anymore. Seems like you are arguing
two different ways at once -- that patents in the US are
significant enough to take the teeth out of software
protection and simultaneously also so insignificant that no
one makes any money from them.

There is a vague loophole from my ignorant view, which is
that you are saying _direct_ money but that indirectly there
is still some substantial value to software patents --
perhaps only to help out large companies squash smaller ones?
I don't know. That's just a guess, because I really don't
know where you took this, at all.

Seems conflicting to me. Besides, it seems you would prefer
to refer to other industries which use copyright and don't
use patent, when that really doesn't help me see how the
injection of patent protection into the system actually
weakens the protection, broadly speaking.

I admit. I'm confused by all this. But I also have asked
enough and must accept when further questions would have to
be considered excessive. You've given your answers and your
time and that's more than enough. I'll just keep your
thoughts in mind and see if perhaps enlightenment comes later
to me. It may happen.

Jon

 

[David Brown]

Walter, one doesn't need to guess about this last comment of
yours, do they? Does Europe permit software patents on the
same scope as the US? If not, then wouldn't their experience
already help inform us about what might happen with "dropping
software patents?" I don't know, but it seems that there is
information in the rest of the world to help shed light in
North America.

Jon

Europe does not permit software patents in anything like the way the US
does. There have been some patents awarded in European countries that
are arguably software patents, and there have been calls to allow
US-style software patents (from a few big companies), and campaigns to
make sure they remain blocked (by all other interested parties).

Over here, software is covered by copyright law, which (for all its
failings) is still the best solution for all parts.

Patents were introduced for the benefit of small inventors. Without
patents, the inventor could either build up production themselves -
profiting from the idea, but only making small quantities of the device
and thus limiting the public good. Or they could give the idea to a
large company for mass production to the public. But without patents,
there was nothing to stop anyone making use of the invention without
paying anything back to the inventor.

To get a patent, you had to invent something new, useful, implementable,
and non-obvious to other experts. There was a time when these criteria
were enforced.

It's obvious from this that software does not need patent protection any
more than books or music - once you have a single implementation of the
software, there is no need for mass production. Publishing and
distribution already has copyright regulation.

In the USA, patents these days are almost entirely registered by large
companies, not small inventors. The checks for validity are almost
worthless - you pay your money, and you get your patent. It is left for
later courts to decide whether or not the patent is valid. These
patents are then used as weapons of defence or aggression between the
big companies and against smaller rivals or upstarts. Since you have a
legal system that generally costs vast sums of money for suit defendants
(whether they are innocent or not, and whether the patent is valid or
not), patents are basically a legalised protection racket.

Software patents make this far worse, since companies can easily
register all sorts of broad patents, and typical software developers
have no practical way of knowing if the code they write infringes on
patents that they have never heard of, and are almost certainly invalid.
The developers in this case are in no way "stealing" from the patent's
owner, or benefiting from the patent owner's work (if indeed they did
any real work for the patent), since they wrote their code without
knowledge of the patents.

Big companies lose out because of the cost of their army of lawyers and
arsenals of patents. Small companies lose out because they either pay
their own army of legal experts, or they risk getting sued into oblivion
if they get too successful. The only winners are the lawyers, the
patent trolls, and the occasional patent holder who strikes it lucky
with a truly useful and economically successful patent.

There are occasional areas in which patents /do/ make sense - drug
research is an oft-quoted example since there the big companies pay a
great deal of money to develop the drugs covered by the patents. But in
most cases, innovation, economic growth, consumers and companies would
be far better served by scraping patents entirely. A good start would
be a gradual reduction in the time for patents down towards a couple of
years (with exceptions such as ten years for drug patents).


The patent situation in Europe is not nearly as bad, but there is
progression towards the American mess.

 

[whygee]

David Brown wrote:

There are occasional areas in which patents /do/ make sense - drug
research is an oft-quoted example since there the big companies pay a
great deal of money to develop the drugs covered by the patents. But in
most cases, innovation, economic growth, consumers and companies would
be far better served by scraping patents entirely. A good start would
be a gradual reduction in the time for patents down towards a couple of
years (with exceptions such as ten years for drug patents).

The patent situation in Europe is not nearly as bad, but there is
progression towards the American mess.

I agree 100% with your whole analysis.

yg

 

[David Brown]

David Brown wrote:


I agree 100% with your whole analysis.

It's not often that happens! Usually I'm considered a bit extreme when
I write that sort of rant...

mvh.,

David

 

[David Brown]

Your questions caused be to think about the differences between
software patents and copyrights. To use a clearer example.
Remember I am not a lawyer but this is the way I understand
it.

Assume that while writing a math package you discover a
completely new new way of doing a square root. You register
the copyright for the math package and you patent the method
you used to do the square root.

Don't forget that you can only register such a patent in the USA. No
other country allows something like that.

You now have full control of the duplication and distribution
of the math package and if anyone copies it in whole or in part
you have various legal recourses including damages.

The square root patent on the other hand could be used in many
math packages and applications. You could then license individual
companies to use it and by agreement receive compensation.

Where this gets murky is what would have happened if you only
copyrighted the math package. After 15 or 17 years you would
still have the copyright and presumably be able to enforce the
distribution in whole or in part. That would mean someone
who only wanted to use the square root part would need to
come to an agreement with you to be able to do so.

People can license all or part of code under whatever terms they want -
patents don't have to be involved at all. Copyright is what gives you
protection and lets you enforce these licenses.

That is why I made the comment about "protection with teeth"
it takes a long time for the material that is copyrighted to
be in the public domain. The damage awards in the music industry
are examples of just how significant copyright violations can be.

The damage awards in the music industry are examples of just how far the
US laws and/or lawyers are from reality. These cases, and the music
industry's attitude to and handling of file sharing, is about greed -
they don't want to change a very lucrative business and see lawsuits as
a way of scaring people and maybe squeezing a bit more out of music
lovers. Steadily more musicians dislike their tactics, and very few
consumers approve. They are trying to label a very large proportion of
the otherwise-ordinary citizenry as criminals, do nothing to stop /real/
issues such as commercial bootlegging, and are making it harder for
honest consumers to trust them. How anyone can thinkdamage awards of
hundreds of thousands of dollars for sharing a dozen songs is
"reasonable", is beyond my comprehension.

 

[whygee]

It's not often that happens! Usually I'm considered a bit extreme when
I write that sort of rant...

I know how it feels ;-)

And i've seen through the years that patents don't make business sense anymore.
It's as if the governments sold bazookas to the population so people can
defend themselves : it does not stop criminality, colateral damages increase,
it makes the weapons manufacturers happy and the government says "it has done
something for the citizen's security".

And I know that, like shit, innovation happens,
if you need patent "protection" it's not innovative.
An inventor invents, a manufacturer manufactures.
The patent's idea of an inventor getting rich because
he sells his patents to a big corp is not false,
but it's so rare, maybe one per 100K patent.
If an inventor gains 1M$ for selling one patent,
for every 10K patents (each costing maybe 10K$) that are
registered, I see that the system's output is really biased
($1M-$10K < 10K*$10K)
It's a disguised lottery that benefits the patent offices
and patent lawyers, and the overflow is spent by the courtrooms.

I "protect" my ideas by publication : when I write articles,
I get paid immediately (instead of spending incredible amounts of cash
for a long and painful patent application), I get recognized
as the innovator (good publicity), it spreads the ideas
(that's the original intent of patents) and I don't annoy anyone
(the reader can skip my article).

David

yg

 

[tim....]

Don't forget that you can only register such a patent in the USA. No
other country allows something like that.


People can license all or part of code under whatever terms they want -
patents don't have to be involved at all. Copyright is what gives you
protection and lets you enforce these licenses.

You cannot copyright a "method" only the exact textual solution is
copyrightable,

for example: if it were possible to patent your "code" for addition then
x = a+b and x = b+a would be covered by a single patent.

but if you copyrighted it and you code was
x=a+b

then someone else can write x=b+a and would not be in breach of your
copyright

tim

 

[Walter Banks]

You cannot copyright a "method" only the exact textual solution is
copyrightable,

for example: if it were possible to patent your "code" for addition then
x = a+b and x = b+a would be covered by a single patent.

but if you copyrighted it and you code was
x=a+b

then someone else can write x=b+a and would not be in breach of your
copyright

This is a common misconception I think that if you intended get
around a copyright you will probably find that the copyright was
violated.

A common copyright violation in the early days of personal
computing was to recompile the PC's Boot ROM's (IBM
published the source) with the functions in a different order
and the memory tests deleted. This was found to be in
violation of the copyrights.

You can violate the copyright of a novel just by using the
same plot lines. You can violate the copyright of a
photograph by using similar composition.

There are real teeth in copyrights if they are exercised. Look at
some of the judgements in the music and movie industry. It
is not just a copy and on line distribution it extends to music and
musical arrangements.

The screen play for Avatar is on line. Completely re-writing
the dialogue into gaelic and changing the location to Greenland
using snowmobiles for transportation would probably be a
copyright violation.

Walter..

 

[Hans-Bernhard Bröker]

It's as if the governments sold bazookas to the population so people
can defend themselves : it does not stop criminality, colateral
damages increase, it makes the weapons manufacturers happy and the
government says "it has done something for the citizen's security".

I actually think the most common application of patents these days is as
our field's equivalent of an anti-personnel mine --- you bury it, wait,
and hope someone will die tripping over it, so you can pick through the
remains. Like mines, they're most typically used in large numbers, as
mine-fields, in an attempt to make entire areas inhabitable.

Big companies tend use them as a deterrent against smaller ones, often
mentioned in a statement containing a suitably spun version of "You
pissed us off, so now we'll sue your pants off".

To those who followed the debate about software patents around here, I'm
sure I'm not the only one to whom some of the arguments brought forth
sounded scarily similar to cold-war rhethorics, especially all that "we
need these things because they have them, and they say they'll bang us
over the head with them" train of thought. Software patents have become
the missile-heads in yet another arms race, this time run by patent
super-powers holding each other at bay, while making the world miserable
for all others.

An inventor invents, a manufacturer manufactures.

And the original idea behind patents was that an inventor should get a
realistic chance to _become_ a manufacturer in his own right, without
being overtaken by existing players in the market who copied his product
as soon as they hear about them.

The original plan was to reward invention with a chance to earn a nifty
sum of money. A patent is a warrant of government-backed protection of
the inventor's (or his partners') investment into setting up a
production, by means of a time-limited monopoly. The government
requests payment for this privilege in the form of letting everyone
benefit from the idea --- but only _after_ the original inventor has
earned their fill.

It's a disguised lottery that benefits the patent offices
and patent lawyers, and the overflow is spent by the courtrooms.

IMHO the end of the US patent system making sense came when their
government turned the USPTO from a tax-financed branch of the executive
to an institution officially tasked with generating a net positive
contribution into the federal budget. Ever since, the USPTO has biased
its procedures towards earning more fees above all else. After all, why
put work into testing, and possibly rejecting a patent application
(little or no fees), when instead you can blindly accept it first
(fee!), then handle the rebuttal process (more fees!) and ultimately
leave all the actual hard work to the courts?

 

[whygee]

Hans-Bernhard Bröker wrote:

After all, why
put work into testing, and possibly rejecting a patent application
(little or no fees), when instead you can blindly accept it first
(fee!), then handle the rebuttal process (more fees!) and ultimately
leave all the actual hard work to the courts?

I see nothing to disagree, excellent points again.
Sadly, it will be hard to sustain an interesting
discussion if we always agree ;-)

yg

 

[Jon Kirwan]

This is a common misconception I think that if you intended get
around a copyright you will probably find that the copyright was
violated.

A common copyright violation in the early days of personal
computing was to recompile the PC's Boot ROM's (IBM
published the source) with the functions in a different order
and the memory tests deleted. This was found to be in
violation of the copyrights.

Any substantial copy ot it should be in violation, unless it
is for educational research purposes or personal use. So I
guess it is good it worked out that way.

You can violate the copyright of a novel just by using the
same plot lines.

The same plot lines are reused over and over again. It's
been said that there has been nothing new under the sun for
many centuries, now. Probably true.

So far as I'm aware, only a particular expression of an idea
can be protected. Not the idea itself. Case law examples
I've see consistently hold that basic plot, settings and
stereotyped characters are not protected. Various story
devices are not and cannot be protected by copyright as they
are in a public commons of literary techniques.

Spielberg's Amistad and the ensuing plagiarism law suit
illustrates a boundary. An author, Chase-Riboud, was flown
to LA to discuss the optioning of her novel, Echo of Lions.
The court determined that DreamWorks didn't violate her
copyright, though, and that the plaintiff couldn't 'sustain'
her burden of proof as the book contained a love story that
was different from Amistad. They were quite similar on most
other accounts, though, according to what I've read about
this case.

Software is a different medium, though. The plot devices
used in novels, such as "the butler did it" or a "sympathetic
mobster", etc., that aren't protected are quite general and
probably not protected at all with books, even if the story
had the butler do it _after_ meeting the sympathetic mobster
just like another story did. Yet, in software, perhaps the
use of a standard deviation algorithm right after the use of
a sort routine _might_ be protected? Or not? I don't know.
But I think the courts did, and my still, have some trouble
parsing all this, correctly and well. I doubt they are in
nearly as good a position to make judgments on these topics
and I suspect that law here is less well controlled by the
judges and more controlled by the money funding the cases.

You can violate the copyright of a
photograph by using similar composition.

Example, please. This sounds almost crazy to me and I'd like
to see just how "similar" you mean to suggest here.

There are real teeth in copyrights if they are exercised. Look at
some of the judgements in the music and movie industry. It
is not just a copy and on line distribution it extends to music and
musical arrangements.

But you just gave a case, Walter, where copyrights __were__
exercized. The BIOS case you talked about. So your _if_ is
already in hand. Your implication is that they aren't, yet
you provide your own contrary evidence.

The screen play for Avatar is on line. Completely re-writing
the dialogue into gaelic and changing the location to Greenland
using snowmobiles for transportation would probably be a
copyright violation.

Hmm. Considering Amistad and Echo of Lions, I wonder. I'm
not sure I fully take your assertion, just yet.

Jon

 

[Jon Kirwan]

Your questions caused be to think about the differences between
software patents and copyrights. To use a clearer example.
Remember I am not a lawyer but this is the way I understand
it.

Assume that while writing a math package you discover a
completely new new way of doing a square root. You register
the copyright for the math package and you patent the method
you used to do the square root.

You now have full control of the duplication and distribution
of the math package and if anyone copies it in whole or in part
you have various legal recourses including damages.

The square root patent on the other hand could be used in many
math packages and applications. You could then license individual
companies to use it and by agreement receive compensation.

Where this gets murky is what would have happened if you only
copyrighted the math package. After 15 or 17 years you would
still have the copyright and presumably be able to enforce the
distribution in whole or in part. That would mean someone
who only wanted to use the square root part would need to
come to an agreement with you to be able to do so.

That is why I made the comment about "protection with teeth"
it takes a long time for the material that is copyrighted to
be in the public domain. The damage awards in the music industry
are examples of just how significant copyright violations can be.

Software patents started to be issued at a point when the software
industry was very young and it wasn't clear if what was important
was process pieces which could be bought and sold like the
components of a library or the complete works like na spreadsheet.

I remember the period and some of the debates that raged at
the time and, vaguely, the reasons why some software vendors
wanted control. At least, what hit the general newspapers at
the time. What I saw in the papers was that end users sold
their software to someone else when they didn't want the
software anymore, or rental companies would buy the software
and rent it out, and the vendors wanted to make both
situations impossible, somehow. In fact, it was especially
in the case of rentals that there was a LOT of argument going
on at the time.

As recently as the mid 80's software tools commonly licensed
libraries as a separate document from the translation tools. There
are still some library only companies out there.

None of this yet addresses itself to situations where the
lack of software patents has led to "protection with teeth"
in the specific case of software.

And you cannot seem to avoid hauling in the 'music industry'
when struggling to press your hypothesis. I don't mean that
negatively, but I am simply unable to port that into this
sphere of seeing this in terms of software. That may be my
own lack of imagination. But there it is. There are too
many differences in medium, market and market history, and
I'm sure this lack of similarity also applies to past case
history, contract law, and torts, and the preparation of
courts and judges to make well-informed findings, as well.

In any case, I just can't get see your assertion regarding
software protection getting stronger by removing software
patents. Copyright already exists in the US. It is also
enforced, as well. You, yourself, gave an example of this in
another post. Patents are, as another poster mentioned, a
veritable mine field (and besides that, I already have taken
the opinion that patents no longer have much value to anyone
other than large companies, anyway, these days.)

What would help is a showing from a developed country (in the
EU?) where a similar outcome followed as you say it would,
with details in evidence, as you assert would occur here in
the US. Namely, where the lack of patents there has led to
_stronger_ protections with more teeth in them than here in
the US, as a total picture.

To be frank, I think the combination of patents AND copyright
in the US has more teeth than copyright only and I cannot see
how the removal of software patents would put MORE teeth into
a situation. Copyright is one method for some domain,
patents are another method of another domain (possibly
overlapping in areas) and the two, combined, is more than
either alone. Even after the courts have a hand in it.

Perhaps I'm not communicating well and am just blind enough
that you cannot seem to reach me, either. It's a chasm I can
clearly notice, but cannot clearly see how to bridge. I know
you were trying to make a clear point that others would
understand well enough. Maybe others got it and I am just
not smart enough to do so. I wish I were better able to
follow your point.

Jon

 

[Hans-Bernhard Bröker]

That is why I made the comment about "protection with teeth"
it takes a long time for the material that is copyrighted to
be in the public domain.

Actually, there's a strong on-going campaign by movie studios and music
publishers, particularly in the USA, to change that "long time" into
"forever". And if they ever get their wish, that'll be an outright
disaster.

 

[Hans-Bernhard Bröker]

You can violate the copyright of a novel just by using the
same plot lines.

If that were actually true, pulp fiction wouldn't exist.

 

[Baron]

David Brown Inscribed thus:

Copyright in the USA (with other countries following on obediently)
gets extended every time Mickey Mouse is nearing the public domain.
Copyright lengths (and patent lengths) are already a disaster - it's
just a question of how much worse they can get. I don't really object
to people having rights over their creations and who can copy them - I
can't see how there is any moral or ethical justification for these
rights being valid 70 years after the author/creator is dead.

The simple answer would be that the copyright ceases on the death of the
originator. That would certainly put a dent into Disney and Elvis...

 

[Jon Kirwan]

One that I am personally familiar with is the owner of a
software games company had a very leather jacket that
made him look like Indiana Jones and was successfully
sued for having his own image on his product with a generic
background of a central American jungle scene.

Search for details on some of the Getty Museum
copyright suites. Not all of them are exact images.

Can't find anything much here. I've tried the following:

+"Getty Museum" copyright suit
Getty Museum copyright suit
+"Getty Museum" "copyright suit" indiana jones

and so on.

I found this, but upon reading further saw it wasn't anything
close:

http://www.theartnewspaper.com/articles/Greek-bronze-will-stay-in-the-Getty-Villa /20504

I did try. Maybe your familiarity can get you closer to
something usable? Best of all would be a court document with
a legal decision expressed, of course.

Jon

 

[Jon Kirwan]

Why should education and personal use be exempted, or
for that matter why should library of congress be exempted?

I believe educational research purposes already are exempted,
aren't they? Under "fair use," limited copying without the
permission of the owner is allowed for some kinds of teaching
and research, if I recall. And there are exceptions also for
the (entire?) reproduction by libraries and archives, memory
serving.

Regarding personal use, I didn't mean to suggest borrowing a
library copy, copying it for personal use, then returning the
original to a library. Though I sometimes wonder. I was
thinking more about making a second copy to hold elsewhere
against the risk of fire or water damage, for example. I
certainly would also consider just buying another copy. But
I think that may be allowed. Also, I believe there is a
commercial value consideration in law in the US, and the
courts look at the market impact of the action taken as to
whether or not it is 'fair use.'

Anyway, that is what I was thinking about when I wrote less,
before.

A counter example is Alex Haley's book about Kunta Kinte.

I was addressing myself to your assertion about violating
"the copyright of a novel just by using the same plot lines."
A single example is enough to muddy up that water.

Missed my point partly. I gave a counter example of what can
happen if they are exercised and the truth strength of copyrights.
The choice to exercise them is not always made.

By whom? The owners? If that's all this is about, then you
seem to be arguing that owners don't now pursue copyright as
much because they have patents, but that if software patents
are removed from the picture that owners will then pursue the
copyright violations more than before? Is that your point?

Jon

 

[terryc]

This is how the business plan for example romance novels works. The
publisher owns the copyright for a particular story formula and hires
authors to write novels using the formula. Copyrights keep others from
duplicating the story lines.

So which colour Mills & Boon do you write?