a computer program is not a patentable invention

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This little gem comes from NZ via Computerworld.
Tuesday, 06 April 2010

========================

Thumbs down for software patents in NZ
Commerce Select Committee tips its hat to open source submissions

Open source software champions have been influential in excluding
software from the scope of patents in the new Patents Bill.

Clause 15 of the draft Bill, as reported back from the Commerce Select
Committee, lists a number of classes of invention which should not be
patentable and includes the sub-clause a computer program is not a
patentable invention.

http://computerworld.co.nz/news.nsf/news/thumbs-down-for-software-patents-in-nz

Cheers Don...




--
Don McKenzie

Site Map:            http://www.dontronics.com/sitemap
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Re: a computer program is not a patentable invention


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Oh my god, this has to be a late April's Fools article.
There can't be that much common sense available these days.


Re: a computer program is not a patentable invention


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so if I go in my basement and work on a new mousetrap for 10 years I
can patent it, but if work on a new algorithm for 10 years it's
somehow not worthy of protection?

a program is just a virtual machine

Re: a computer program is not a patentable invention


In article <19a5f6cf-56ea-4eca-acf9-72661f51eaf7
@g11g2000yqe.googlegroups.com>, bungalow snipped-for-privacy@yahoo.com says...
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3D%
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An algorithm is not necessarily a program.   The program should be
protected by copright.
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And it is just one way of utilizing an algorithm.


Mark Borgerson



Re: a computer program is not a patentable invention


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so if I go in my basement and work on a new mousetrap for 10 years I
can patent it, but if work on a new algorithm for 10 years it's
somehow not worthy of protection?

a program is just a virtual machine
--------------------------
so if I go in my basement (were I to have one) and work on a new book for 10
years why shouldn't I patent that. No, software is much more like a book
than a machine. Algorithms are much more like mathematics. More vague
algorithms such as user interfaces and heuristics are much more like a
novel. That's what copyright is for.

The purpose of patents, as I understand it, is to give the inventor
protection to commercialise there idea while making the invention available
for the public good in the long run. If you want to protect software in the
same way then the code needs to be published in the patent application and
be freely available for public use once the patent duration expires.
Copyright, does require you to expose you code and the protection period is
far longer.

Peter



Re: a computer program is not a patentable invention


In article <19a5f6cf-56ea-4eca-acf9-
snipped-for-privacy@g11g2000yqe.googlegroups.com>, bungalow snipped-for-privacy@yahoo.com0%
says...
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3D%
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There comes a problem with patenting software, consdiring the book
analogy someone else cited.

Patenting software is like patenting a book of a specific size,
type and colour of paper, cover photo, and binding combination. The
copyright for a book exists mainly on the content of the book (and
ancilliaries like illustrations, photos, cover layout.

Consider a novel circuit patent, and someone adds one resistor to
improve it, they have improved upon the patent, not infringed it.

How are you going to patent the software in binary form or at source
level in what language for which host. One could agrue using a different
compiler has improved upon the patent because using a different compiler
or compiling switches has speeded the software up hence improved upon
a previous patent.

The algorithm used is best described without actual software as in
5 years everybody could be using it written in a different language
for three new instruction sets of new cpus.

Just the byte oreding of the storage could make it non-identical,20%
let alone different instruction sets of the host that may improve it20%
again.

How are you going to patant software for any cpu, any language,
any bus/register width, any memory size, any byte/word ordering.
then prove the software is a copy.

--20%
Paul Carpenter          | snipped-for-privacy@pcserviceselectronics.co.uk
<http://www.pcserviceselectronics.co.uk/ PC Services
<http://www.pcserviceselectronics.co.uk/fonts/ Timing Diagram Font
<http://www.gnuh8.org.uk/ GNU H8 - compiler & Renesas H8/H8S/H8 Tiny
<http://www.badweb.org.uk/ For those web sites you hate

Re: a computer program is not a patentable invention




Paul Carpenter wrote:

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To use both the book analogy in both the patent and copyright
sense. The result may be a far stronger protection for software.
I know about quite a few software patents but I know of very
few that generated enough revenue to pay for the costs of
protecting and enforcing the patent. I only know of two that
actually made real money.

Copyrights are a different matter. There are lots of precedents
and the courts know how to handles cases of rewritten
to circumvent as well as assign monetary awards. Depending
on country the copyright protection can last a long time to a
very long time.

There are several current very interesting open cases where
copyrights and not patents may affect software. The most
interesting one that I currently know about is a standard
40+ year old reference book of  polynomial constants.

Dropping software patents may result in software
protection with teeth.

Regards,

Walter Banks
--
Byte Craft Limited.



Re: a computer program is not a patentable invention




Walter Banks wrote:

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To add one more comment. Much of the open source software
is primarily protected with copyrights.

Regards,


Walter..
--
Walter Banks
Byte Craft Limited
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Re: a computer program is not a patentable invention


On Thu, 15 Apr 2010 16:21:00 -0400, Walter Banks

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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

Re: a computer program is not a patentable invention




Jon Kirwan wrote:

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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.

NZ may have seen software patents as having limited
real value for the software creator. It took a while for the
music industry to sort out creative protection. Time will
tell if apple iPad stores can use the same model.

Copyrights are inexpensive and easy to register and have
actually become the defacto protection.

It is also something that open source folks need to look at
as well. There are some open source copyright holders
with rights that many authors may not have believed they
gave up.

Regards,


w..
--
Walter Banks
Byte Craft Limited
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Re: a computer program is not a patentable invention


On Thu, 15 Apr 2010 19:34:55 -0400, Walter Banks

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I think I took your point on this, already.

I was asking about any specific knowledge or experience you
might have (as I believe your knowledge here will be far
broader than most) about what actual circumstances might tell
us, today -- regarding the situation where software patents
are generally not used (or allowed.)

It seems to me that we could learn from object lessons found
in real life, rather than speculating, and that you might
have some examples to draw from that informed your stance
above.  If not, that's a fine answer.  That would only mean I
have nothing else to go on.

Certainly, prior to much before 1980 in the US, software
patents didn't exist and so their introduction must have also
led to a lot of speculation, much wrong but some perhaps
right, about what the court decisions then would mean. Today,
we have a lot more information to apply and over a world wide
system, so I'm thinking we aren't in the same situation of
speculation that we were in 30 years ago.

The rest below also doesn't address this, so I am not sure
how to add to that.  Best to leave it, for now.

Jon




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Re: a computer program is not a patentable invention




Jon Kirwan wrote:

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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.

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

Patents especially software patents have one use that
copyrights do not and that is to put an idea into the public
domain in such a way and to prevent it from being owned
and controlled by anyone else.

I have done this twice specifically for that reason. In
both cases went as far as a patent disclosure and
never following through so the disclosure itself would be
a matter of public record. (BYTE paper bytes and the
physics behind touch sensitive switches) Both were done
in the 70's and both would have long expired.

In both cases that I know of software patents paying
well they were pursued by companies that bought patents
just before they would expire and then used very
aggressive approaches to collect royalties (close to extortion).
One of these was related to scanning of LCD displays
and the other was an obscure barcode patent. The rules
have changed now to require patent owners to have
a competitive interest in the technology.

Regards,


w..
--
Walter Banks
Byte Craft Limited
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Re: a computer program is not a patentable invention


On Thu, 15 Apr 2010 23:08:23 -0400, Walter Banks

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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.

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Yes.  Thanks for that reminder.

Jon




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Re: a computer program is not a patentable invention



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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

Re: a computer program is not a patentable invention




Jon Kirwan wrote:

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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.

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.

w..





Re: a computer program is not a patentable invention


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

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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.

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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.

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Re: a computer program is not a patentable invention



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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





Re: a computer program is not a patentable invention


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That's not quite true - copyright does not just apply to exact copies.
Think about it a little - if you take a book you like, and copy it but
give all the characters new names, can you publish it as your own new
novel?  Of course not.  In fact you can make very substantial changes
and it would still be a copyright violation - the same applies to software.

An independent and unseen re-implementation of the same idea is not a
copyright violation, though it might have been a patent violation.

There is an enormous amount of software released in source code form to
individuals, companies, and the public at large.  The great majority of
it has some sort of license (i.e., it's not public domain), but no
patent protection.  Copyright is what provides the legal strength to
enforce the license.  It's proven strong enough to provide the
protection people need - software patents simply are not necessary.  If
you want an example, just look at all the software written anywhere in
the world except the USA.

Re: a computer program is not a patentable invention




"tim...." wrote:

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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..





Re: a computer program is not a patentable invention


On Fri, 16 Apr 2010 15:21:01 -0400, Walter Banks

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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.

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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.

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

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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.

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

Jon

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