Open Source Initiative, Free Software Foundation Unite Against Software Patents

WebMink writes "In rare joint move, the OSI and FSF have joined with Eben Moglen's Software Freedom Law Center to file a U.S. Supreme Court briefing in the CLS vs Alice case. The brief asserts the basic arguments that processes are not patentable if they are implemented solely through computer software, and that the best test for whether a software-implemented invention is solely implemented through software is whether special apparatus or the transformation of matter have been presented as part of the claims (the 'machine or transformation' test). They assert that finding software-only inventions unpatentable will not imperil the pace of software innovation, citing the overwhelming success of open source in the software industry as proof."

Comments

Good to see them working together

[cbhacking]

I respect Stallman's accomplishments, and I can see the logic of his arguments, but I sometimes feel that he's too divisive within the F/LOSS community. Infighting - which is easy for outside forces to exploit - could weaken all sides of the movement. This lawsuit is a key example of a situation where by combining forces, they can achieve more than either those who take a pragmatic or a principled stand (what I see as the key differences between the OSI and FSF) could achieve alone. I hope to see more such efforts (and of course, I hope they prevail in this suit).

Re:Good to see them working together

[Merk42]

Good job being an example of the infighting that GP is talking about.

Re:Good to see them working together

[cbhacking]

I see nothing ad-hominem about pointing out that the leader of one of the organizations in question has frequently gone on the record attacking major projects supported by members of the other organization, and attacking those members' ethics in general. There was an article just a few days ago about Stallman denouncing LLVM/Clang, despite its technical merits and open-source nature, because it's not his preferred *flavor* of "free software". Never mind that just as anybody can fork it and make the fork proprietary, so can anybody fork it and make the fork copyleft. Also never mind that there are plenty of examples closing permissively-licensed software and having the open-source version (which may or may not have been relicensed copyleft) win anyhow.

Zealotry can have it's uses, but that doesn't mean that the zealots are right. It doesn't mean they're wrong, either. Some of Stallman's predictions have come eerily accurate. Others have been way off the mark. I'm of the opinion that cooperation and technical excellence in open-source development, regardless of whether or not it's copyleft, is more important than dividing the community over licensing issues. Stallman disagrees. This is an issue between the OSI and the FSF. That's not ad-hominem, it's a statement of fact pertinent to the discussion at hand.

But hey, if *you* want to have an argument about whether or not I'm making logically unsupported attacks.. well, you can go have one in the corner by yourself, while the rest of us discuss the actual topic. Try to keep it down, will you?

why should "with a computer" matter at all?

[raymorris]

I believe that of you take an OLD idea and do it on a computer, doing it on a computer doesn't matter, it's still an old idea and not patentable.
That implies that if you create a NEW idea, doing it on a computer still doesn't matter.

If you decide that whether or not a computer is used affects patentability, it implies that adding "on a computer" could make something patentable just as easily as it could make something unpatentable. I believe that's a mistake. Old ideas shouldn't be patentable, while new inventions should be. Whether or not a computer is involved isn't really relevant.

 

Re:why should "with a computer" matter at all?

[JesseMcDonald]

I believe that of you take an OLD idea and do it on a computer, doing it on a computer doesn't matter, it's still an old idea and not patentable.
That implies that if you create a NEW idea, doing it on a computer still doesn't matter.

I agree. The sorts of things that are being patented "on a computer" shouldn't be patentable without a computer, either. The computer is ultimately just a mechanism for speeding up math. With or without that speedup, the underlying subject of the patent application is pure math—and math, as such, is not supposed to be patentable subject matter. It doesn't matter whether the idea is new or old.

Re:why should "with a computer" matter at all?

[king neckbeard]

Throwing a computer into an otherwise patentable process won't make it unpatentable, see Diamond v. Diehr. The concern is whether something that has no substantial steps outside of a computer can be patentable. I would say that the answer is no, since software could theoretically 'run' on any Turing Complete machine (ignoring the infinite memory stuff), and the human mind can operate in that way. Operations of the human mind are mental processes, and have been explicitly ruled not patentable.

Patent office & Abstraction Physics....

[3seas]

Clips from the Patent office regarding patents http://threeseas.net/mind/pate...
And of course http://abstractionphysics.net/

both a misconception and irrelevant

[raymorris]

That's a common misconception. The actual wording is that you can't patent the LAWS of nature, including the laws of mathematics. In other words, you can't patent gravity, you can patent a new type of elevator. You can't patent mass, you can patent a new type if scale. You can't patent "x + y = y + x". You can patent a new method for ranking relevant web pages in search results.

Also, "the first programmers were ..." is about as relevant as "the first humans were ...". Even what you said about that is wrong, too. The FIRST programmers re-arranged wooden gears to make the machine operate differently. Are you wanting to argue that a specific arrangement of gears designed to perform a specific task can never be a patentable invention?

Re:both a misconception and irrelevant

[ciaran_o_riordan]

> You can patent a new method for ranking relevant web pages in search results.

Well, no. That's only the patent office's point of view. We don't know what the Supreme Court thinks about this, and that's what this case is going to decide.

Two types of companies sue,and they're both trolls

[GoodNewsJimDotCom]

You either have the company who has no product, but a couple patents suing to make any money at all.

Or
You have a software giant with thousands of software patents who sues any little guy they perceive as a threat.

The notion of protecting the little guy with an idea from the ravages of cloning competition is a joke. There is a very real negative force applied to anyone who tries to make something new in the software world.

The overwhelming success of open source

[sberge]

Ok, so there is a open source "unix", open source "office", open source "photoshop" and more or less popular and successful open source versions of just about any common piece of software. The brief specifically mentions GNU/Linux as an example of the overwhelming success of open source in the software industry. The argument, as I understand it, is that we don't need software patents because innovative software gets created anyway, like GNU/Linux. But for all its qualities, GNU/Linux wasn't innovative, its stated goal is to create a knock-off of unix. There are better examples of innovation in the brief, like web servers / browsers, but these were initially government funded, and the government has never needed to patent its inventions.

There are good arguments against software patents, but "the overwhelming success of open source in the software industry" is not a very compelling proof, IMHO.

Re:The overwhelming success of open source

[king neckbeard]

The start of a field is an incredibly nebulous topic since most fields have branched off from other fields,, and again, at the level you are talking about, almost all of it is going to be academic or government funded. And just for the sake of clarity, the CERN stuff was itself FOSS. I don't know why you feel the need to dismiss government funded research because it's fundamental to this conversation. One form of subsidy (direct funding) produces things that another form of subsidy (patents) doesn't. Even if the free as in freedom market couldn't deliver this degree of progress by itself, why use patents to bolster the market if they are merely a second rate tool?

Re:Feel free to improve

[gnick]

If a mouse was involved, I'm calling PETA too.

Re:Good

[Immerman]

Well, good sense shows up for the battle anyway, we'll have to wait for a ruling to see if it prevails.

to free or not to free

[znrt]

"over licensing issues"

free or not free, that's not a "licensing issue". it's all or nothing.

Re:to free or not to free

[cbhacking]

You're free to use either one the way you want.
You're free to modify either one the way you want.

One of them, you're free to relicense a fork of the code (even as proprietary) if you want.
The other one, you can know that any code you contribute to it will forever be free.

They are both "free". They are different flavors of free, but they are both free in every way that matters to users.
The *only* difference is in the way you can re-distribute them. That is a licensing (specifically, a matter of the copyright license) issue.

If you claim that BSD, or MIT, or even something like MS-PL are "not free"... well, you're crazy. Also, a prime example of the problems I was talking about at the start of the thread.

Re:to free or not to free

[Immerman]

I agree. He points out that the only reason to use an Apache/MIT/public domain license is to allow it to be taken proprietary. In some cases, such as implementations of open standards, that can be a net benefit - in fact I'd be delighted if Libre-Office and others P.D.ed all ODF-related I/O libraries. And with Open Office having been donated to Apache we're getting that from at least one implementation. For other things, like the BSD kernel, it invites the appropriation by uncooperative commercial interests such as Apple. Whether that is a net benefit to human freedom is a far murkier question, and deserves to be highlighted by idealists.

Forget Open Source...

[almechist]

I think a better example of how unnecessary software patents are is to look at the period known sometimes referred to as "the PC Revolution". Virtually all the software written in the early days of personal computing (Apple II, IBM PC, TRS-80, etc...) was not patented, in fact it was believed by most programmers at the time that software just wasn't patentable. And yet that period saw unfettered innovation in software, I will cite the invention of the spreadsheet as just one example. Nobody in the industry worried about patents, everybody made money, and innovation soared. What better proof is there that software patents are not only not needed, but in practice actually suppress innovation?

Re:Forget Open Source...

[almechist]

Tell Zynga's targe- er, competitors about how copyright is enough to protect software and patents are unnecessary.

You can't use a current example to prove patents are necessary, of course they are now, in this brave new world of IP protection mania. Once you introduce the idea and reality of software patents, they become essential for both defensive and offensive corporate strategy. But they're still an abomination, and contribute nothing of value to anyone who isn't a lawyer. Besides, I was talking about true innovation, Zynga and its ilk hardly qualify as shining examples.

patentable gear configurations

[morgauxo]

"Are you wanting to argue that a specific arrangement of gears designed to perform a specific task can never be a patentable invention?"

As open ended as you just put it I would not make that argument.
However, I'm imagining if people had big peg boards for placing gears on in their homes like people have computers now.
And what if they somehow performed different tasks by placing their gears on the pegs in different configurations.

Now what if someone told you you couldn't put your gears on your peg board in a specific configuration that you wanted to use to solve your task because someone else did it first and they own the patent on it.

Seems kind of silly doesn't it!