It's even more exaggerated than that. So-called patent trolls are not generally interested in shutting down infringers (unless they have an exclusive license with someone else, which I don't think Personal Audio does). They want infringers to stay in business so they can get paid licensing fees. Since they want to maximize their revenue, they don't even want the license to be so burdensome that infringers simply close up shop rather than pay. What's more, the normal standard for patent damages is a reasonable royalty, so in most cases the patentee can't even ask for (much less receive) enough damages to shut down infringers.
The law already recognizes this. First, damages for patent infringement can only go back six years. Second, the standard for issuing an injunction takes into consideration how long a patentee sat on its rights and the extent to which the public has become dependent upon the wide availability of the invention. Third, there is an equitable doctrine called laches that can prevent a claim from being made after a long time, sort of like a flexible, implicit statute of limitations.
One of the requirements for asking for a declaratory judgement is that you have to either have been sued or have a reasonable fear of being sued by the patent-holder.
That's not the standard for declaratory judgment jurisdiction in patent cases and hasn't been since the 2007 MedImmune case, in which the Supreme Court rejected the Federal Circuit's "reasonable apprehension of suit" test. The MedImmune standard is "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." MedImmune v. Genentech, 549 U.S. 118, 127 (2007) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).
The patent specifically discusses Mosaic as it existed at the time, as well as Netscape, Cello, and Lynx. It claims that none of them were capable of accomplishing the claimed invention, and neither were any then-existing email programs. Say what you will about Intellectual Ventures, but the people behind it aren't stupid. I don't think they would sue a company the size of Google (the owners of Motorola Mobility) without making sure the patent is pretty solid.
"Those patents have created "patent thickets" that make it difficult for scientists to do genetic research and commercialize their results. "
Except that empirical research shows that gene patents have not created thickets or impeded genetic research or the commercialization of that research. See John P. Walsh, Charlene Cho, and Wesley M. Cohen, Patents, Material Transfers and Access to Research Inputs in Biomedical Research, Final Report to the National Academy of Sciences’ Committee Intellectual Property Rights in Genomic and Protein-Related Inventions (2005) ("our results suggest that commercial activity is widespread among academic researchers. However, patenting does not seem to limit research activity significantly, particularly among those doing basic research.")
Clearly finding out the purpose of a gene will always be a discovery and not an invention. Discoveries are not patentable.
"The term “invention” means invention or discovery." 35 U.S.C. 100(a). You can argue that this is not what the law should be, but this has been the law in the United States since at least 1952.
No. Being a monopoly is perfectly legal, abusing the power is not. They are not abusing their power, and they are not even close to being a monopoly.
There is much more to antitrust law than monopolies. For example, there are "contracts, combinations..., or conspiracies in restraint of trade or commerce" in violation of the Sherman Act. I did not suggest that WebKit was a monopoly. I suggested that competitors (such as Google and Apple) were colluding to dominate the HTML rendering engine market. That kind of concerted anticompetitive action is precisely what the Sherman Act is aimed at preventing.
Engineering-led, sure, but that wasn't the claim I was responding to. The claim was "Companies can work together just fine......just as long as you keep managers, marketeers, sales people and HR out of it." Management was clearly involved.
Google did this first, they helped Firefox to really take off
No, Apple announced Safari in January of 2003, years before Google began seriously funding Mozilla through search referral kickbacks and hiring a few engineers to work part-time on Mozilla projects. Work on WebKit started within Apple even further back, in mid-2001.
When Microsoft dominated the browser market by abusing its market power in the operating system market, that was an antitrust problem. Should we not be concerned when a group of competitors collude to dominate the HTML rendering engine market? It's a different kind of market than the browser market, but it is still a market, and a dominant player will cause problems for both competitors and consumers. For example, even though the WebKit browsers are generally free, WebKit's dominance is steadily leading to a lack of choice and a security monoculture. Witness the recent FillDisk exploit, which only affects WebKit browsers.
This is an example of how open source can allow competitors to collaborate in ways that might ordinarily raise more antitrust scrutiny. Here, several companies for whom an HTML engine is an input have collaborated to reduce the cost of that input. In doing so they have effectively pushed a competitor (Opera) out of the HTML engine market. Firefox and IE's usage share have also steadily been falling for years in favor of WebKit browsers. Will we wait until WebKit has a stranglehold on the market before taking corrective action, like we did with IE?
You don't think management was involved Apple's decision to use KHTML as the basis for Safari rather than Gecko (the Mozilla engine)? Or the decision to use an open source engine in the first place rather than creating their own proprietary engine? You don't think sales and marketing were involved in the decision to feature the open source nature of the engine when Safari was first announced ("Safari’s features include... the industry’s best rendering engine based on KHTML, from KDE’s Konqueror open source project, to which Apple has made significant enhancements that will be contributed back to the open source community."). You don't think HR was involved in recruiting software engineers with experience working with open source projects?
The same is true of every other company that has used WebKit. Companies that base products on open source projects are not self-governing programmer utopias.
While for-profit companies that use and develop free and open source software have been sued for patent infringement, "FOSS communities" essentially never have been. The author is correct that "FOSS communities have fretted over this risk for years," but that's just it: they have fretted and nothing has come of it.
"Patent trolls" want licensing revenue. You can't squeeze blood from a turnip, so suing an open source project directly is a pointless waste of money. A proprietary competitor may only be interested in excluding an open source project from the market, but even that is effectively impossible. For example, consider the efforts to get rid of DeCSS and its progeny. That was about copyright, not patents, but the point is that a) you can't remove something from the internet and b) a project can always move to another country with more favorable laws. Patents are territorial: if a company sues a project in country A, the project can just move to country B, where the company doesn't have a patent.
What are you talking about? There is no "Patent Appeals Court" in the United States. There is the Court of Appeals for the Federal Circuit. And the standard for non-obviousness was most recently articulated by the Supreme Court in KSR v. Teleflex, a 2007 case in which the Court held that the precise prior art combination did not need to be explicitly "written down in that form":
As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.
The Court further loosened concerns over hindsight bias:
A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning.... Rigid preventative rules that deny factfinders recourse to common sense, however, are neither necessary under our case law nor consistent with it.
As for the "more than the sum of its parts" standard: that comes from the Great Atlantic & Pacific Tea Co. case of 1950. And it wasn't modified by some "Patent Appeals Court." It was statutorily overruled by Congress by the Patent Act of 1952, as later interpreted by the Supreme Court itself in Graham v. John Deere.
A patent is not a substitute for a viable business model. One cannot simply receive a patent and wait for the money to roll in, especially not as technology changes around you, quite often in order to work around your patent.
In this case, in 1991 Baylis invented a generator that was based on storing energy in a spring, then using a system of gears to release that energy steadily to power various devices such as a radio. But by 1995 wind-up radios were on their way out and by 2000 they had been entirely replaced by battery-based radios. His invention was a flash in the pan.
So Baylis had a nice idea, made some decent money off of it, but failed to turn that into a sustainable career. Now he wants the entire UK patent system modified in order to rescue him from his misfortune.
We have design patents already that covers "look and feel."
Design patents and copyright also cover different subject matter, though that's a finer distinction than utility patents and copyright.
And copyright law is fairly unified. You may be thinking of trademark law.
No, definitely copyright. Consider all the special rules for phonorecords, broadcast programming by cable, satellite transmissions of local programming, satellite transmissions of non-local programming, pictorial graphic and sculptural works, nondramatic musical works, computer programs, coin-operated phonorecord players, etc, etc.
When run on a computer, that could be called expressive, but it is a performance then, and not fixed and therefore not copyrightable.
This is...not even wrong. Consider a vinyl LP. If the music on the LP is played, that is a performance. But the LP is still a tangible medium of expression in which the work has been fixed. Similarly, running a computer program may be considered a performance, but the hard drive (or whatever medium) is still a tangible medium of expression in which the work (the object code) has been fixed.
Suppose someone wrote a program directly in machine code, as was done in the old days and is still done in some cases now. Would that not be a creative expression? What is different about machine code written by a human as compared to machine code created by a program from source code written by a human?
Anyway, you're making an argument about what the law ought to be. I am describing the law as it is. "At the other end of the abstractions spectrum, source and object code, which are the literal elements of a program, will almost always be found to be protectable expression unless the doctrines of merger and scenes a faire come into play." Gates Rubber Co. v. Bando Chemical Indus., Ltd., 9 F.3d 823, 836 (10th Cir. 1994) (emphasis added).
Object code (for anything) is not expressive, purely functional.
No, it is a literal expression of the creative decisions made at a higher level.
By analogy, consider an oil painting and a JPEG representation of that oil painting. The oil painting is a creative work of authorship fixed in a tangible medium of expression. In a sense, the JPEG is a functional thing: it describes how to produce an image that represents the oil painting. Much of the nuance of the original is lost: it is two-dimensional, digital, etc. But the JPEG is also a derivative work that expresses many of the creative decisions made in the original work. And so the JPEG is also a creative work.
The same is true of source code and object code. A contrived example may show the principle more clearly. Consider a program that creates poetry based on aesthetic rules created by the programmer. The source code is certainly a creative expression, but so is the object code. It contains and expresses those same creative aesthetic rules, albeit in a very literal way, without the nuance of, e.g., variable names or comments. There has been a certain amount of reduction of expression as a result of the compilation process, but many elements of creative expression are still present.
What the EFF is specifically decrying is functional claiming. That is, an element of a claim described not in terms of what it is but in terms of its function. For example, instead of claiming a nail or a screw, claiming "a means for mechanically fastening" or, even more broadly, "a fastening means." This is allowed under 35 U.S.C. 112 6, now 112(f):
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
In other words, you can use functional claiming, but you have to explain what you mean in the specification, and you only get what you describe there, plus equivalents. If you don't describe what you mean then the claim is invalid as indefinite.
In the case of software, generically claiming an algorithm (e.g. "sorting means") requires describing in the specification what you mean by that. There has to be some corresponding structure. Failure to properly support a functional claim has bitten many a patentee. This happened just recently in a software patent case involving Google as a defendant, for example. Function Media, L.L.C. v. Google Inc.. Overall, the popularity of functional claiming has been dropping like a rock. From ~1992 to 2011 the percentage of newly issued patents with at least one "means for" claim fell from ~45% to ~10%. It has since fallen to almost 5%.
The United States uses a system called "peripheral claiming," in which patent applicants stake out the outermost boundaries or periphery of their claimed invention. This is in contrast to the older (think the 1800s) system of central claiming, where the applicant would claim the "heart" or "gist" of the invention. The problem with central claiming is that courts had to decide when an alleged infringer got "too close" to the claim, which was often a very subjective process. With peripheral claiming, the infringer either has each and every element of the claim or they don't (with a small amount of wiggle room for the doctrine of equivalents). This forces the applicant to say, up front, exactly what they've invented and—importantly—support it in the specification.
Over time, however, there has been a perceived (and perhaps real) growth in the number of patentees trying to make their claims cover more than they actually invented. This is what the written description and enablement requirements in patent law are designed to prevent. See 35 U.S.C. 112. I have said many times on Slashdot and elsewhere that these requirements should be tightened. What the EFF is proposing is, broadly, along those lines, though it is specific to software patents. I am generally not in favor of special rules for different areas of technology. Patent law has mostly avoided that. Copyright law has not, and it has turned the copyright statute into a sprawling mess dictated by special interests.
If the written description and enablement requirements were tightened up, however, then one way that computer-implemented inventions could demonstrate compliance (i.e. show that the application contained "a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains... to make and use the same") would be to provide extensive source code or pseudocode examples. But in our zeal to rein in unsupported functional claims we should not return to central claiming.
As an aside, right now many if not most patents that involve software use flowcharts rather than pseudocode or source code. This is the result of Patent Office backwardness dating back to its initial opposition to allowing patents on computer-implemented inventions in the first place. Only now is the Patent Office finally recognizing that pseudocode or source code is much more searchable, readable, and useful for everyone involved, including patent examiners, competitors, and alleged infringers.
Your first example isn't very good. The first one, application number 10/437,822 for an IsNot operator in Basic, was abandoned for failure to respond to an office action. Basically the examiner said "this is not patentable" and the applicant gave up.
The question could be asked, why isn't Copyright protection sufficient for your code?
Because copyright only protects the non-functional creative expression, not the functional aspects of the code. 17 U.S.C. 102. The patent, correspondingly, protects only the functional parts. This is the requirement that an invention be 'useful' as found in 35 U.S.C. 101. The two forms of intellectual property cover entirely non-overlapping subject matter.
And this is not an academic distinction. Consider, for example, a server-based web application. Your code, even your object code, is entirely hidden (barring a security problem). In theory you do not even need copyright; trade secret protection would suffice. But a patent lets you protect the functional aspects of the application.
Or consider a hypothetical hybrid open source-proprietary project. The source code is open but some functional aspects are patented. Anyone who makes a derivative work has a license to use the patent (so forking is okay), but competitors can't make a wholly proprietary version that implements the patented features. The open source license relies on copyright; the patent license gives the hybrid project some leverage against proprietary competitors.
If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.
Unlike copyright law, patent law does not recognize independent invention as a defense to infringement. Why should inventions that involve a computer be treated differently than, say, a mouse trap in that regard?
The first working fuel cell was demonstrated in 1839. Their commercial use dates back to 1955. There's plenty of competition in the fuel cell market (the actual market, not this niche product). Patents aren't the problem. The real problem is that, of all the variations on fuel cells out there today, none of them offer a combination of a low operating temperature, low cost, and portability. It's just not a good technology for small-scale, everyday use compared to batteries.
All of the claims in the Micron patent refer to the user "drawing" the geometric pattern. The term "drawing" is not defined in the patent, so a court would likely give the term its ordinary and customary meaning given to the term by those of ordinary skill in the art. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). But I don't think "drawing" has a particular technical meaning in this context. The Oxford American Dictionary defines it as to "produce (a picture or diagram) by making lines and marks; produce an image of (someone or something) in such a way."
The Apple unlock mechanism doesn't produce a picture or image or make a line or mark on the screen. The user causes the slider to move, but it doesn't draw a line. Technically the "slide to unlock" text fades out and it could be argued that the user is "drawing" over "slide to unlock" in black, but that's a pretty strained way to look at it. A somewhat firmer interpretation would be that "drawing" can sometimes be used in a metaphorical sense. For example, someone can be said to draw a shape in the air with their finger.
If Micron sued Apple over this patent (or assigned the patent to someone who sued Apple), it's quite possible that the case would hinge on the meaning of that word.
MATH IS NOT FUCKING PATENTABLE YOU IDIOTS! STOP ALLOWING SOFTWARE PATENTS SINCE THEY ARE JUST MATH.
Well let's look at claim 1 of this patent. "A system comprising: a touch screen upon which a user is to enter, by drawing, a geometric pattern in a specified direction to gain access to the system; and a processing circuit coupled to the touch screen to compare the user entered geometric pattern to a predefined geometric pattern stored in a memory."
Certainly some parts of this can be reduced to mathematics. The geometric pattern, obviously, as well as whatever algorithm is used for comparing the input with the pattern. But no amount of math is going to cause a touch screen to appear out of thin air. And if I sit in front of a locked phone with a piece of paper and a pencil, I can do math all day and that phone will remain locked. That's because the patent is not a patent on math. It's a patent on an electronic device that happens to use some mathematical principles in order to function in a certain way.
It's no different from a patent on the design of an airplane wing that defines the shape of the wing in terms of a mathematical function. You can analyze that function, write proofs about it, etc all day and never create an airplane wing because the math is fundamentally separable from the invention that uses it.
Slashdot Mirror
It's even more exaggerated than that. So-called patent trolls are not generally interested in shutting down infringers (unless they have an exclusive license with someone else, which I don't think Personal Audio does). They want infringers to stay in business so they can get paid licensing fees. Since they want to maximize their revenue, they don't even want the license to be so burdensome that infringers simply close up shop rather than pay. What's more, the normal standard for patent damages is a reasonable royalty, so in most cases the patentee can't even ask for (much less receive) enough damages to shut down infringers.
The law already recognizes this. First, damages for patent infringement can only go back six years. Second, the standard for issuing an injunction takes into consideration how long a patentee sat on its rights and the extent to which the public has become dependent upon the wide availability of the invention. Third, there is an equitable doctrine called laches that can prevent a claim from being made after a long time, sort of like a flexible, implicit statute of limitations.
One of the requirements for asking for a declaratory judgement is that you have to either have been sued or have a reasonable fear of being sued by the patent-holder.
That's not the standard for declaratory judgment jurisdiction in patent cases and hasn't been since the 2007 MedImmune case, in which the Supreme Court rejected the Federal Circuit's "reasonable apprehension of suit" test. The MedImmune standard is "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." MedImmune v. Genentech, 549 U.S. 118, 127 (2007) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).
A lot of email clients do that. They call it downloading images referenced in HTML-formatted email.
you may want to look at NCSA Mosaic
The patent specifically discusses Mosaic as it existed at the time, as well as Netscape, Cello, and Lynx. It claims that none of them were capable of accomplishing the claimed invention, and neither were any then-existing email programs. Say what you will about Intellectual Ventures, but the people behind it aren't stupid. I don't think they would sue a company the size of Google (the owners of Motorola Mobility) without making sure the patent is pretty solid.
"Those patents have created "patent thickets" that make it difficult for scientists to do genetic research and commercialize their results. "
Except that empirical research shows that gene patents have not created thickets or impeded genetic research or the commercialization of that research. See John P. Walsh, Charlene Cho, and Wesley M. Cohen, Patents, Material Transfers and Access to Research Inputs in Biomedical Research , Final Report to the National Academy of Sciences’ Committee Intellectual Property Rights in Genomic and Protein-Related Inventions (2005) ("our results suggest that commercial activity is widespread among academic researchers. However, patenting does not seem to limit research activity significantly, particularly among those doing basic research.")
Clearly finding out the purpose of a gene will always be a discovery and not an invention. Discoveries are not patentable.
"The term “invention” means invention or discovery." 35 U.S.C. 100(a). You can argue that this is not what the law should be, but this has been the law in the United States since at least 1952.
No. Being a monopoly is perfectly legal, abusing the power is not. They are not abusing their power, and they are not even close to being a monopoly.
There is much more to antitrust law than monopolies. For example, there are "contracts, combinations..., or conspiracies in restraint of trade or commerce" in violation of the Sherman Act. I did not suggest that WebKit was a monopoly. I suggested that competitors (such as Google and Apple) were colluding to dominate the HTML rendering engine market. That kind of concerted anticompetitive action is precisely what the Sherman Act is aimed at preventing.
I am not the first person to suggest that collaboration between competitors via open source projects can raise antitrust concerns. See, e.g., Stephen M. Maurer, The Penguin and the Cartel: Rethinking Antitrust and Innovation Policy for the Age of Commercial Open Source .
Basically, you have no idea what you are talking about and just throw around words that make you sound clever.
I am an attorney. You may want to rethink that accusation.
Sounds like an engineering-led decision to me.
Engineering-led, sure, but that wasn't the claim I was responding to. The claim was "Companies can work together just fine... ...just as long as you keep managers, marketeers, sales people and HR out of it." Management was clearly involved.
Google did this first, they helped Firefox to really take off
No, Apple announced Safari in January of 2003, years before Google began seriously funding Mozilla through search referral kickbacks and hiring a few engineers to work part-time on Mozilla projects. Work on WebKit started within Apple even further back, in mid-2001.
When Microsoft dominated the browser market by abusing its market power in the operating system market, that was an antitrust problem. Should we not be concerned when a group of competitors collude to dominate the HTML rendering engine market? It's a different kind of market than the browser market, but it is still a market, and a dominant player will cause problems for both competitors and consumers. For example, even though the WebKit browsers are generally free, WebKit's dominance is steadily leading to a lack of choice and a security monoculture. Witness the recent FillDisk exploit, which only affects WebKit browsers.
This is an example of how open source can allow competitors to collaborate in ways that might ordinarily raise more antitrust scrutiny. Here, several companies for whom an HTML engine is an input have collaborated to reduce the cost of that input. In doing so they have effectively pushed a competitor (Opera) out of the HTML engine market. Firefox and IE's usage share have also steadily been falling for years in favor of WebKit browsers. Will we wait until WebKit has a stranglehold on the market before taking corrective action, like we did with IE?
You don't think management was involved Apple's decision to use KHTML as the basis for Safari rather than Gecko (the Mozilla engine)? Or the decision to use an open source engine in the first place rather than creating their own proprietary engine? You don't think sales and marketing were involved in the decision to feature the open source nature of the engine when Safari was first announced ("Safari’s features include ... the industry’s best rendering engine based on KHTML, from KDE’s Konqueror open source project, to which Apple has made significant enhancements that will be contributed back to the open source community."). You don't think HR was involved in recruiting software engineers with experience working with open source projects?
The same is true of every other company that has used WebKit. Companies that base products on open source projects are not self-governing programmer utopias.
While for-profit companies that use and develop free and open source software have been sued for patent infringement, "FOSS communities" essentially never have been. The author is correct that "FOSS communities have fretted over this risk for years," but that's just it: they have fretted and nothing has come of it.
"Patent trolls" want licensing revenue. You can't squeeze blood from a turnip, so suing an open source project directly is a pointless waste of money. A proprietary competitor may only be interested in excluding an open source project from the market, but even that is effectively impossible. For example, consider the efforts to get rid of DeCSS and its progeny. That was about copyright, not patents, but the point is that a) you can't remove something from the internet and b) a project can always move to another country with more favorable laws. Patents are territorial: if a company sues a project in country A, the project can just move to country B, where the company doesn't have a patent.
What are you talking about? There is no "Patent Appeals Court" in the United States. There is the Court of Appeals for the Federal Circuit. And the standard for non-obviousness was most recently articulated by the Supreme Court in KSR v. Teleflex , a 2007 case in which the Court held that the precise prior art combination did not need to be explicitly "written down in that form":
The Court further loosened concerns over hindsight bias:
As for the "more than the sum of its parts" standard: that comes from the Great Atlantic & Pacific Tea Co. case of 1950. And it wasn't modified by some "Patent Appeals Court." It was statutorily overruled by Congress by the Patent Act of 1952, as later interpreted by the Supreme Court itself in Graham v. John Deere .
A patent is not a substitute for a viable business model. One cannot simply receive a patent and wait for the money to roll in, especially not as technology changes around you, quite often in order to work around your patent.
In this case, in 1991 Baylis invented a generator that was based on storing energy in a spring, then using a system of gears to release that energy steadily to power various devices such as a radio. But by 1995 wind-up radios were on their way out and by 2000 they had been entirely replaced by battery-based radios. His invention was a flash in the pan.
So Baylis had a nice idea, made some decent money off of it, but failed to turn that into a sustainable career. Now he wants the entire UK patent system modified in order to rescue him from his misfortune.
We have design patents already that covers "look and feel."
Design patents and copyright also cover different subject matter, though that's a finer distinction than utility patents and copyright.
And copyright law is fairly unified. You may be thinking of trademark law.
No, definitely copyright. Consider all the special rules for phonorecords, broadcast programming by cable, satellite transmissions of local programming, satellite transmissions of non-local programming, pictorial graphic and sculptural works, nondramatic musical works, computer programs, coin-operated phonorecord players, etc, etc.
When run on a computer, that could be called expressive, but it is a performance then, and not fixed and therefore not copyrightable.
This is...not even wrong. Consider a vinyl LP. If the music on the LP is played, that is a performance. But the LP is still a tangible medium of expression in which the work has been fixed. Similarly, running a computer program may be considered a performance, but the hard drive (or whatever medium) is still a tangible medium of expression in which the work (the object code) has been fixed.
Suppose someone wrote a program directly in machine code, as was done in the old days and is still done in some cases now. Would that not be a creative expression? What is different about machine code written by a human as compared to machine code created by a program from source code written by a human?
Anyway, you're making an argument about what the law ought to be. I am describing the law as it is. "At the other end of the abstractions spectrum, source and object code, which are the literal elements of a program, will almost always be found to be protectable expression unless the doctrines of merger and scenes a faire come into play." Gates Rubber Co. v. Bando Chemical Indus., Ltd., 9 F.3d 823, 836 (10th Cir. 1994) (emphasis added).
Object code (for anything) is not expressive, purely functional.
No, it is a literal expression of the creative decisions made at a higher level.
By analogy, consider an oil painting and a JPEG representation of that oil painting. The oil painting is a creative work of authorship fixed in a tangible medium of expression. In a sense, the JPEG is a functional thing: it describes how to produce an image that represents the oil painting. Much of the nuance of the original is lost: it is two-dimensional, digital, etc. But the JPEG is also a derivative work that expresses many of the creative decisions made in the original work. And so the JPEG is also a creative work.
The same is true of source code and object code. A contrived example may show the principle more clearly. Consider a program that creates poetry based on aesthetic rules created by the programmer. The source code is certainly a creative expression, but so is the object code. It contains and expresses those same creative aesthetic rules, albeit in a very literal way, without the nuance of, e.g., variable names or comments. There has been a certain amount of reduction of expression as a result of the compilation process, but many elements of creative expression are still present.
What the EFF is specifically decrying is functional claiming. That is, an element of a claim described not in terms of what it is but in terms of its function. For example, instead of claiming a nail or a screw, claiming "a means for mechanically fastening" or, even more broadly, "a fastening means." This is allowed under 35 U.S.C. 112 6, now 112(f):
In other words, you can use functional claiming, but you have to explain what you mean in the specification, and you only get what you describe there, plus equivalents. If you don't describe what you mean then the claim is invalid as indefinite.
In the case of software, generically claiming an algorithm (e.g. "sorting means") requires describing in the specification what you mean by that. There has to be some corresponding structure. Failure to properly support a functional claim has bitten many a patentee. This happened just recently in a software patent case involving Google as a defendant, for example. Function Media, L.L.C. v. Google Inc.. Overall, the popularity of functional claiming has been dropping like a rock. From ~1992 to 2011 the percentage of newly issued patents with at least one "means for" claim fell from ~45% to ~10%. It has since fallen to almost 5%.
The United States uses a system called "peripheral claiming," in which patent applicants stake out the outermost boundaries or periphery of their claimed invention. This is in contrast to the older (think the 1800s) system of central claiming, where the applicant would claim the "heart" or "gist" of the invention. The problem with central claiming is that courts had to decide when an alleged infringer got "too close" to the claim, which was often a very subjective process. With peripheral claiming, the infringer either has each and every element of the claim or they don't (with a small amount of wiggle room for the doctrine of equivalents). This forces the applicant to say, up front, exactly what they've invented and—importantly—support it in the specification.
Over time, however, there has been a perceived (and perhaps real) growth in the number of patentees trying to make their claims cover more than they actually invented. This is what the written description and enablement requirements in patent law are designed to prevent. See 35 U.S.C. 112. I have said many times on Slashdot and elsewhere that these requirements should be tightened. What the EFF is proposing is, broadly, along those lines, though it is specific to software patents. I am generally not in favor of special rules for different areas of technology. Patent law has mostly avoided that. Copyright law has not, and it has turned the copyright statute into a sprawling mess dictated by special interests.
If the written description and enablement requirements were tightened up, however, then one way that computer-implemented inventions could demonstrate compliance (i.e. show that the application contained "a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains ... to make and use the same") would be to provide extensive source code or pseudocode examples. But in our zeal to rein in unsupported functional claims we should not return to central claiming.
As an aside, right now many if not most patents that involve software use flowcharts rather than pseudocode or source code. This is the result of Patent Office backwardness dating back to its initial opposition to allowing patents on computer-implemented inventions in the first place. Only now is the Patent Office finally recognizing that pseudocode or source code is much more searchable, readable, and useful for everyone involved, including patent examiners, competitors, and alleged infringers.
Your first example isn't very good. The first one, application number 10/437,822 for an IsNot operator in Basic, was abandoned for failure to respond to an office action. Basically the examiner said "this is not patentable" and the applicant gave up.
The question could be asked, why isn't Copyright protection sufficient for your code?
Because copyright only protects the non-functional creative expression, not the functional aspects of the code. 17 U.S.C. 102. The patent, correspondingly, protects only the functional parts. This is the requirement that an invention be 'useful' as found in 35 U.S.C. 101. The two forms of intellectual property cover entirely non-overlapping subject matter.
And this is not an academic distinction. Consider, for example, a server-based web application. Your code, even your object code, is entirely hidden (barring a security problem). In theory you do not even need copyright; trade secret protection would suffice. But a patent lets you protect the functional aspects of the application.
Or consider a hypothetical hybrid open source-proprietary project. The source code is open but some functional aspects are patented. Anyone who makes a derivative work has a license to use the patent (so forking is okay), but competitors can't make a wholly proprietary version that implements the patented features. The open source license relies on copyright; the patent license gives the hybrid project some leverage against proprietary competitors.
If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.
Unlike copyright law, patent law does not recognize independent invention as a defense to infringement. Why should inventions that involve a computer be treated differently than, say, a mouse trap in that regard?
The first working fuel cell was demonstrated in 1839. Their commercial use dates back to 1955. There's plenty of competition in the fuel cell market (the actual market, not this niche product). Patents aren't the problem. The real problem is that, of all the variations on fuel cells out there today, none of them offer a combination of a low operating temperature, low cost, and portability. It's just not a good technology for small-scale, everyday use compared to batteries.
All of the claims in the Micron patent refer to the user "drawing" the geometric pattern. The term "drawing" is not defined in the patent, so a court would likely give the term its ordinary and customary meaning given to the term by those of ordinary skill in the art. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). But I don't think "drawing" has a particular technical meaning in this context. The Oxford American Dictionary defines it as to "produce (a picture or diagram) by making lines and marks; produce an image of (someone or something) in such a way."
The Apple unlock mechanism doesn't produce a picture or image or make a line or mark on the screen. The user causes the slider to move, but it doesn't draw a line. Technically the "slide to unlock" text fades out and it could be argued that the user is "drawing" over "slide to unlock" in black, but that's a pretty strained way to look at it. A somewhat firmer interpretation would be that "drawing" can sometimes be used in a metaphorical sense. For example, someone can be said to draw a shape in the air with their finger.
If Micron sued Apple over this patent (or assigned the patent to someone who sued Apple), it's quite possible that the case would hinge on the meaning of that word.
MATH IS NOT FUCKING PATENTABLE YOU IDIOTS! STOP ALLOWING SOFTWARE PATENTS SINCE THEY ARE JUST MATH.
Well let's look at claim 1 of this patent. "A system comprising: a touch screen upon which a user is to enter, by drawing, a geometric pattern in a specified direction to gain access to the system; and a processing circuit coupled to the touch screen to compare the user entered geometric pattern to a predefined geometric pattern stored in a memory."
Certainly some parts of this can be reduced to mathematics. The geometric pattern, obviously, as well as whatever algorithm is used for comparing the input with the pattern. But no amount of math is going to cause a touch screen to appear out of thin air. And if I sit in front of a locked phone with a piece of paper and a pencil, I can do math all day and that phone will remain locked. That's because the patent is not a patent on math. It's a patent on an electronic device that happens to use some mathematical principles in order to function in a certain way.
It's no different from a patent on the design of an airplane wing that defines the shape of the wing in terms of a mathematical function. You can analyze that function, write proofs about it, etc all day and never create an airplane wing because the math is fundamentally separable from the invention that uses it.