a computer program is not a patentable invention

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

Reply to
Jon Kirwan
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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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Reply to
Walter Banks

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

Reply to
Jon Kirwan

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?

Reply to
terryc

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.

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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Reply to
Walter Banks

In the same way that the plot line of a book is part of a copyright and composition of a photograph.

The test is a lot more rigorous than a file compare. The legal precedents for copyrights are mostly in the arts. Talk to a lawyer about the intricacies of copyright sometime. Fascinating stuff.

Early boot ROM's in PC's were re-compiled clones of the original IBM PC boot ROM's with functions re-ordered. Tracing execution flow from the reset vector in the ROM's identified the copyright. US customs had automated tools to check imports for copyright violations at the time.

Regards,

Walter..

-- Walter Banks Byte Craft Limited

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Reply to
Walter Banks

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.

Yes. Thanks for that reminder.

Jon

Reply to
Jon Kirwan

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

Reply to
Jon Kirwan

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.

Reply to
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.

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..

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Reply to
Walter Banks

I agree 100% with your whole analysis.

yg

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http://ygdes.com / http://yasep.org
Reply to
whygee

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

mvh.,

David

Reply to
David Brown

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.

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.

Reply to
David Brown

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).

yg

--
http://ygdes.com / http://yasep.org
Reply to
whygee

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

Reply to
tim....

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.

Reply to
David Brown

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..

Reply to
Walter Banks

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.

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.

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?

Reply to
=?ISO-8859-1?Q?Hans-Bernhard_B

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

yg

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Reply to
whygee

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.

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.

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

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.

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

Jon

Reply to
Jon Kirwan

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