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Software Patents Compared to Hard Patents
Arie writes "The Slate discusses the obvious differences between patenting an algorithm and a drug. The article introduces the Fence test, which basically says that if you can physically protect your property, you have a case patenting it. In addition, it claims that the burden on a programmer identifying whether he is infringing on a patent or not involves excessive research burden, essentially to the inherent lack of physical boundaries. Obviously the article starts off with mentioning the patent dispute between RIM and NTL."
Would that this were so. Unfortunately, a graphics company I worked for got hit by Cadtrak's patent on the XOR operation back in the day. This is a hardware patent based on the obvious fact that negating a value twice returns the original value. The inventor applied this to drawing and erasing lines on a screen and then sold the patent to Cadtrak who vigorously licensed it.
Its a good example of applying an obvious concept to a new application. Every TV set ever made uses an XOR to add and erase the HSync signal in the VSync, but that isn't drawing a line, so it doesn't count as prior art. Thank you, USPTO.
Intron: the portion of DNA which expresses nothing useful.
Patents are not [for] ideas, they are for things.
Well said, sir.
I think the fence analogy is rather confusing, however. (No offense to Jefferson, of course.) I prefer to draw the line between ideas and implimentations. Without this distinction, there would be no such thing as a competing product.
For example, let's say you think of a novel new way to wake people up in the morning; something that's never been marketed before, like pouring water on your head. So you take this idea and distill it down into an implimentation called the AlarmWaker3000, which you patent. Now your good friend down the street has this same idea, and creates himself the WakeUp Machine, which he patents. But because the AlarmWaker3000 used a bucket and a piece of string tied to the hands of a clock, and the WakeUp Machine uses a hose crimped by a weight that gets lighter over time, neither one of you are infringing on each other's patents. You didn't patent "A method for waking someone up by splashing their face with cold water," you patented the "AlarmWaker3000" and the "WakeUp Machine".
The question of infringement on a patent usually boils down to the similarity between the two devices. Two companies can build, and patent, two different motherboard designs with exactly the same functionality: onboard video, sound, ethernet, whatever. But as long as the circuits are dissimilar enough (which is up to a judge to decide) then the implimentations are different and they don't infringe.
The problem with software patents is that the the line between ideas and implimentations has been blurred. Amazon patents their code for purchasing things with a single mouse click, once all your information is on file and you are logged in. Suddenly, anyone creating a shopping system that allows registered customers who are logged in to purchase things with a single mouse click is infringing on the patent, even if their implimentation is different. These companies are trying to use the patent system to enforce artifical monopolies on ideas instead of implimentations, and effectively cut out the competition. The truly troubling part is that the Patent Office, and lots of patent courts settling disputes around the country, seem to be going along with it.
Maybe the fault lies with an overworked Patent Office staff; maybe it lies with a culture that irrationally rewards new technologies. I just don't know.
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The problem with software patents is that the the line between ideas and implimentations has been blurred.
.," as opposed to, say, a cotton gin.
." which include a claimed restriction on reverse engineering their nonpatentable products.
Actually, I don't like the fence analogy either and it wasn't 'exactly' the model Jefferson used.
The true test is whether the research can be transmitted by speech/print.
k=1/2mv^2, E=mc^2, "Now is the winter of our discontent. .
If you can recite the research than it falls under those laws intended to protect speech, not things. As you say, ideas as opposed to implimentations.
It is, unfortunately, computers that have blurred the line between the two with the decision that since the physical device impliments the idea that it is somehow itself the device.
This is the sort of bullcrap we get when people cannot differentiate between the physical and logical levels. At its extreme I have seen plans for a piece of furniture that has no patent protection on it try to apply EULA copyright restrictions to your ablility to impliment the plans and claim a license fee for every instance of the furniture you build.
Oh, yeah, and a website whose legal page actually begins with "By viewing you agree to these policies . .
It's gone totally crazy out there.
KFG