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Another (weak) Defense of Software Patents (and its rebuttal)

Have a look at this article.

Depending on your taste, you might find that it contains some nice rhetoric. But right from the start, it gets the most basic facts wrong, e.g: "Although the Supreme Court has previously stated that software is

patentable subject matter"

No, that's not what the Supreme Court said. What the Supreme Court actually did say was that processes are patentable and that only because Software is involved in a solution this doesn't necessarily exclude it from patentability in all cases. But, whenever an algorithm is involved in such a solution it has to be treated as prior art, i.e. it cannot be claimed (let alone patented) alone.

See the Amicus Curiae Brief by FFII an IP Justice in the Bilski

case, especially p. 23 ff for further details.

Goetz then presses for software patents by arguing that hardware and

software are equivalent. Very nice, so he has heard about the Church-Turing thesis, too.

What he doesn't mention though is one of the most important and basic differences between hardware and software: For Hardware you need to buy parts, you need to carefully plan and build something, and if you do anything wrong, things will break and you'll have to buy new parts, and build the thing again. Only 2% of the population are engineers and patent law is supposed to be limited to them.

Software on the other hand can be written by anyone and reusing,

combining and refining it continuously is one of it's most basic properties. Ever tried to bolt a plane and a ship together? And would you expect the result to fly and swim? Or to be just an embarrassing bulk of stuff that'll likely explode right in your face?

Well, with software, you do it every day. Bolt together a web server and

a database, and here you have your information management system. Bolt together a file browser and an image viewer, bingo, that's your digital photo library. And so on. That's the difference between hardware and software: Hardware is built by engineers, software is written. Therefore, patents for hardware, copyright for software.

See the Amicus Curiae Brief by FFII an IP Justice in the Bilski

case, especially p. 9 ff for further details.

Still, Goetz insists that Software should be patented because "software

product companies are high technology manufacturing entities", "more

similar to engineers than writers". He just states that without really

elaborating it and supposes we should take it at face value - after all

he's the guy who's proud of having gotten the first software patent in

the history of the U.S. so he can't be biased, can he?

But let's just think about this for a moment. How is software created in such companies? And how is a blockbuster in Hollywood created? All that CGI... digitaly filmed, edited, distributed and projected. A movie is a product to. And where's the newspaper that hasn't got a website, these days? Should plotlines for films be patented too, just because Hollywood is an Industry? Should news items be "protected" by patents?

And so here's what he concludes:

"It is obvious that software products are not “software ideas”[...]"

Well, that's just irrelevant and distracting. But what actually is relevant is that any Software consist of algorithms (and only algorithms).

And further:

"I believe the Courts should view software as a component of a general

purpose computer (a machine) and that software transforms a general

purpose computer into a special purpose computer (or machine)."

That belief is wrong. Although one might feel tempted to agree to the first half of it to some limited extent at least, the second part is nothing more than an arbitrary assumption and its conclusions are borderline absurd. Depending on your definition of "part", Software (i.e. Algorithms) might indeed be seen as a part of a general purpose computer.

But it definitely is not a part which "transforms a general purpose computer into a special purpose computer": Only because you install a word processor on your Laptop it doesn't become non-general all of a sudden - you still can use it to surf the internet, sent mail, listen to music, watch videos and do an infinite amount of other general purpose stuff. Just like a film projector isn't becoming a "special device for displaying a story involving a guy dressing up as flying rodent" only because the theater owner choose to show the Batman movie tonight.

And that's exactly why the Supreme Court stated already that an algorithm has to be treated as prior art in patent law. It's just that his view has been distorted by the USPTO and lower courts ever since the State Street case.

Again, see the Amicus Curiae Brief by FFII an IP Justice in the Bilski

case, especially p. 23 ff for further details.

No, the Bilski case is not about the Supreme Court reversing what he said in the past - it is about reaffirming it and putting the lower courts back

on track, thereby plainly and simply ensuring law and order in patent law again.

Reposted fromgjakob gjakob
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