One problem with line-drawing like that is that it leads to edge cases and gaming the system. So, for example, if you say that widgets are patentable, then you'll get the companies that make widget accessories, alloys used in making widgets, business methods involving the sale of widgets, devices that compete with widgets, etc all claiming that their inventions likewise need protection. Or if you say that drugs are patentable then you'll get companies that make medical devices, vaccines, biologic drugs, gene therapies, diagnostic tests, drug discovery methods, laboratory equipment, etc all saying that their inventions should likewise be patentable since they either fulfill the same purpose (treating disease) or are closely related to the pharmaceutical industry. And it spirals out of control from there.
Further, we have international treaty obligations that would make it very difficult to go to such a restrictive view of patentable subject matter. Not to mention the millions of patents that would either still be in force for a couple decades or, if they were retroactively revoked, would result in a massive takings claim against the government.
And anyway, the natural experiment that happened between the US (biotech patentable) and Europe & Japan (more restrictive view of patenting biotech) has shown that taking an expansive view of patentable subject matter seems to be beneficial.
being original, useful, and non-obvious to a patent lawyer
This is a misstatement. It must be non-obvious to a person having ordinary skill in the art at the time of the invention. And patents are examined by people with technical backgrounds, not patent lawyers.
If there were fewer patent lawyers there would be just as many patent suits. The only difference would be that the remaining lawyers would all be hired by the richest clients and the less rich clients would get raked over the coals. I'm not saying more lawyers would help, but fewer certainly wouldn't.
And remember, behind every sleazy lawyer is a sleazy client.
Yes, you did need to provide a link because googling it shows that you are wrong. Promotional budgets at US pharmaceutical firms average 24.4% of their US domestic sales, less than half what you claimed. Here's another source saying 30%, and that's from a largely anti-big pharma report.
Don't get me wrong, I don't think pharma companies should spend (or necessarily be allowed to spend) so much money on advertising, especially direct-to-consumer advertising, but get your facts straight, especially when you're going to make such sweeping claims.
Good thing that software patents don't claim the software per se but rather the use of the software on a computer (i.e. a physical computing device), or the software as encoded on a physical, computer-readable storage medium.
A program in the abstract can be turned into a mathematical proof. But software in the real-world is not math. For example, consider Bresenham's line algorithm. The algorithm (or its equivalent mathematical proof) will not cause lines to appear on a computer screen. In patent terms, it lacks utility, an essential requirement of any patentable invention. But the same algorithm implemented as part of an executable program on a computer can be quite useful.
So that's why the "but software is just math, math isn't patentable, therefore software isn't patentable" argument fails. "Software" is math only in a highly abstract theoretical sense. As implemented on physical computing devices it is not. And it is only the latter type that is patentable.
The inconsistency it what causes all the problems.
How so? Because some applicants take advantage of inconsistency to sneak past questionable claims? Tightening things up may not result in perfect consistency, but as long as things are tightened up across the board then it should be an improvement.
And if you don't trust the PTO to get it right, how about moving to a registration scheme rather than an examination scheme and letting litigated patents get sorted out by the courts? Aggressive fee-shifting and the elimination of the presumption of validity would prevent the courts from being swamped with frivolous suits.
To be frank, my biggest problem with most of these suggestions is they come from law professors, who for the most part, have never practiced patent law in the real world. And even if they have, haven't done so for a very long time.
That's just the credentialism version of an ad hominem argument. And, as you seem to recognize, some law professors who make these kinds of recommendations have, in fact, practiced patent law in the real world for quite a while. I can think of one example with six years of experience and a couple of decades of consulting work on the side. Is that enough?
Two of their policy recommendations: "More rigorous enforcement of the claim definiteness standard would be an excellent step forward.... One promising policy reform is greater use of fee-shifting to favor defendants in cases brought by trolls."
I am probably regarded as a pro-patent advocate here, but I have made those same recommendations on Slashdot in the past. For example, from October, 2010: "I am personally in favor of substantially tightening the enablement requirement (as well as the related written description requirement)." Enablement and written description are closely related to definiteness (they're all part of 112).
Or from earlier this year: "I favor greater use of fee-shifting in patent cases (i.e. patentee pays the other side's attorney's fees if the patent is invalidated)."
I say this not to say "I told you so" (I certainly didn't come up with the ideas on my own), but rather to point out that there are some important solutions that patent policy analysts agree on, even if they disagree about the nature or scope of the problems with the patent system. I think Bessen and Meurer are wrong about several things, but there's still common ground regarding policy recommendations.
That kind of offensive and misogynistic language is completely inappropriate. Anyone with mod points should moderate that comment into oblivion, and shame on those who moderated it up.
The scope of a patent is defined by its claims as read in light of the specification, but design patents only have one claim, which simply refers to the drawings in the patent specification. The figures in design patents are drawn in a very particular way. The most important thing to know is that only the solid lines matter. The dashed lines are only there to provide context and do not represent the claimed design. In this case, most of the laptop is drawn in dashed lines. It's a little hard to tell because of the relatively low-quality PDF, but it looks like only the lid is drawn in solid lines. Compare that to the parent design patent, D642172, which covers more of the case, the keyboard, etc.
Sure they do. How else do you think they make money? Even when they sue, the purpose of the suit is to force the defendant to take a license, either court-imposed or in settlement negotiations. In the case of a non-practicing entity, the purpose of an injunction is just to give the patentee leverage in the license negotiations. There are exceptions, such as a patentee that has an exclusive licensee and is suing to prevent others from using the technology, but ultimately that's about protecting the value of the original license.
The Harvard researchers didn't use gene therapy to lengthen the telomeres. They engineered a knock-in allele encoding a 4-hydroxytamoxifen (4-OHT)-inducible telomerase reverse transcriptase-Estrogen Receptor (TERT-ER) under transcriptional control of the endogenous TERT promoter. Basically, the mice had short telomeres and the researchers could reactivate telomerase by administering 4-OHT. That's genetic engineering, not gene therapy in adult mice.
Furthermore, the Harvard researchers showed the reversal of artificially-induced aging, but not an increase in lifespan. The researchers in this study demonstrated an increase in lifespan in normal mice.
The Harvard study showed that improving telomerase activity could reverse or slow aging, but it didn't show how to actually accomplish this in normal, adult organisms. That's what the researchers in this study have done, at least in mice.
No, the Harvard researchers didn't do the same thing. They genetically engineered mice to have short telomeres, inducing faster aging, and then reversed the process by reactivating telomerase. The mice didn't actually live longer than normal. By contrast, the researchers in this study used a single application of gene therapy to extend the lifespan of normal mice, and they did so using techniques that have already been used in humans to treat other conditions.
That would mean that, as a practical matter, no patent that included a software component would ever be infringed. The all elements rule requires each and every element of a claim to be present in order to find infringement. Thus, a patent on a new, useful, and nonobvious machine that happened to use a microcontroller would be worthless because it would never be infringed. A competitor would simply sell the machine and the software separately. The machine by itself would not infringe the patent, and selling and installing the software would not infringe the patent under your proposed rule. Trying to patent the machine without the software installed would not work either, since without the software the machine would not function and thus would fail the utility requirement.
This is an example of why, even if Congress were prepared to ban software patents, it would not be very easy to do so. Until there is a workable definition of "software patent," calls to ban software patents are equivalent to saying things like "we should stop crime." It may be a laudable goal, but without a workable plan for accomplishing that goal, it's not very helpful.
Okay, great. Now turn that into a definition of "software patent" that is neither under- nor overinclusive, can be easily and unambiguously applied, and cannot easily be gamed.
(Yes, including 1. Think about it: could you patent both the machine in example 1, and the instruction manual for curing rubber using it, separately? Not really).
Actually, you could. Consider a simple rubber curing machine that has only one control: a thermostat. One coud patent that machine and one could patent a method of curing rubber using the machine, which gave various temperatures and hold times that produced a good product.
In the case of 5, why should that software be patentable? Any actual useful results from the software WOULD be patentable, provided they could be physically implemented. There is no need whatsoever to patent the software itself.
Sure there is. Such a program would be highly useful to the designers of rubber curing machines, as it would allow them to test new designs without having to build physical prototypes. For example, the Boeing 777 was the first aircraft designed entirely on computer, which was apparently a great improvement over the old design process. Why wouldn't we want to encourage such innovation?
But your example has nothing to do with software patents. It has to do with curing rubber.
Even number 5, which is strictly a patent on a computer program for modeling the rubber curing process and thus involves nothing physical, apart from the computer itself? What about a patent on a computer program for simulating the behavior of objects made of rubber (e.g. in a 3d modeling program)?
In this case the software is just a piece of the process, a tool. This is a lot different than, "patent a cursor by using XOR"
How is that different? The software is just a piece of the process for displaying a cursor. What's so different about a cursor on a computer screen and a piece of cured rubber? They're both useful, physical applications of a mathematical idea.
Programs ARE math. Yep, they are abstract things that you can't hold on your hand (didn't you notice it?). You'd better define better what you mean by "pounder", because depending on your definition, that'll indeed make a search result appear on your head/paper/computer.
Then allow me to be more clear: I mean programs in the context of software patents, which is the context in which we are discussing the issue. A software patent does not claim an algorithm by itself (i.e. the claim does not begin with "An algorithm, comprising..."). It claims either a computer programmed in a particular way or a computer-readable medium on which the program is stored or a method for programming a computer or some other connection to a physical artifact. In the context of software patents, a program is tied to a physical device in a way that makes it both useful and concrete.
By "ponder" I meant to consider a program or mathematical algorithm in one's mind. The point is that one can "do math" in a way that is not covered by a software patent that claims a useful application of the same mathematical idea. This demonstrates that such a software patent is not a patent on the underlying mathematics.
But software patents claim more than just a program. They claim a program running on a computer, or stored on a computer-readable medium. Consider, for example, this hypothetical claim: "A method for calculating a sum comprising a user entering two numbers into a computer followed by the computer calculating the sum of the numbers and displaying the sum on an output device." No amount of math (in the abstract sense) will cause a user to enter numbers into a computer or for the computer to display the sum. I can do math (e.g. prove theorems, use formulas to calculate results, etc) all day and never cause that to happen because it requires input from a person and output on a physical device. Neither of those are math.
And, to address your analogy, patenting software isnt equivelant to patenting a new wing design. It's equivelant to patenting to the math which you used to develop the new wing design.
You've only stated a conclusion, not given reasons for it. I gave reasons: both are embodiments of mathematical ideas that have useful applications in the physical world. The curve of an airplane wing is defined by physics, which is in turn defined by math. A patent on a wing design is, in that sense, a patent on an application of the equations that define an optimal wing. A computer program is defined by math, and a patent on software is a patent on the application of that math to achieve a useful result.
In order to ban software patents, one must first define software patents. I challenge anyone in favor of banning software patents to come up with a definition of the term that is neither under- nor overinclusive, can be easily and unambiguously applied, and cannot easily be gamed. Here are some example technologies to think about as you develop your definition:
1. A machine that cures rubber by heating and cooling it, controlled by hand. 2. A machine that cures rubber by heating and cooling it, controlled by a computer program using a new, nonobvious, and useful application of a mathematical equation. 3. A new and nonobvious kind of rubber curing machine that uses such a complex curing process that only a computer could control it, resulting in a significantly superior product. 4. A computer program for controlling the rubber curing process using a new, nonobvious, and useful algorithm that could only be carried out by a computer, resulting in a significantly superior product. 5. A computer program for modeling the rubber curing process using new, nonobvious, and useful applications of mathematical equations.
If you want to ban software patents, where do you draw the line?
All programs are math. If it isnt math you cannot run it on a COMPUTER.
No, programs use math. Math, in the abstract, is not useful. No amount of thinking about math will ever cause something to happen in the physical world. I can ponder the Page Rank algorithm all day long but that won't cause internet search results to spontaneously appear on my computer. Software patents cover using math to achieve a useful result. They satisfy the utility requirement of patent law in a way that math in the abstract does not and cannot.
Software engineers use math to achieve useful results in the same way that engineers in other fields use math to achieve useful results. There is no meaningful distinction between a novel algorithm leading to a more efficient program and, for example, a novel wing design (created using physics simulations based on math) leading to a more efficient airplane. They are both embodiments of mathematical ideas that have useful applications in the physical world.
Software patents are not patents on math because they are tied to machines, networks, sensor input, and other physical artifacts. No amount of thinking about matrix transformations will cause three dimensional graphics to appear on a computer screen. No amount of thinking about the Page Rank algorithm will cause internet search results to appear. A patent on an algorithm or a data structure is in no way a patent on the underlying math.
Just because some idiot lawyers redefined "software" as not being "math", because they couldn't grasp the math isn't enough reason to not ditch illegally granted patents.
I'm a lawyer, and I also have both bachelor's and master's degrees in computer science. I get the math just fine. The problem is a lot of engineers who don't understand the law.
The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.
That's not accurate. Patents are presumed valid by statute, but they aren't presumed infringed. The plaintiff still has to make out a prima facie case of patent infringement, which the defendant can then rebut or defend against in some other way (e.g. by showing that the patent is invalid or unenforceable).
Because slavery was abolished at the constitutional level. Prior laws abolishing slavery typically did so gradually in ways that avoided takings claims. When Congress abolished slavery outright in the District of Columbia in 1862, it compensated slaveowners loyal to the Union. See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1373 (2008).
I suppose a takings claim could be avoided if software patents were abolished by constitutional amendment, but that's incredibly unlikely.
The $500 billion figure has been cited a few times, including by Drew Curtis in his astonishingly poorly-informed talk about patent trolls. The event study methodology used in the Bessen et al. study has been criticized as likely to overestimate the costs attributed to patent trolls. See Glynn S. Lunney, Jr., On the Continuing Misuse of Event Studies: The Example of Bessen and Meurer, 16 J. Intell. Prop. L. 35 (2008) (responding to similar event studies done by Bessen and Meurer when they wrote their book Patent Failure).
Slashdot Mirror
One problem with line-drawing like that is that it leads to edge cases and gaming the system. So, for example, if you say that widgets are patentable, then you'll get the companies that make widget accessories, alloys used in making widgets, business methods involving the sale of widgets, devices that compete with widgets, etc all claiming that their inventions likewise need protection. Or if you say that drugs are patentable then you'll get companies that make medical devices, vaccines, biologic drugs, gene therapies, diagnostic tests, drug discovery methods, laboratory equipment, etc all saying that their inventions should likewise be patentable since they either fulfill the same purpose (treating disease) or are closely related to the pharmaceutical industry. And it spirals out of control from there.
Further, we have international treaty obligations that would make it very difficult to go to such a restrictive view of patentable subject matter. Not to mention the millions of patents that would either still be in force for a couple decades or, if they were retroactively revoked, would result in a massive takings claim against the government.
And anyway, the natural experiment that happened between the US (biotech patentable) and Europe & Japan (more restrictive view of patenting biotech) has shown that taking an expansive view of patentable subject matter seems to be beneficial.
being original, useful, and non-obvious to a patent lawyer
This is a misstatement. It must be non-obvious to a person having ordinary skill in the art at the time of the invention. And patents are examined by people with technical backgrounds, not patent lawyers.
If there were fewer patent lawyers there would be just as many patent suits. The only difference would be that the remaining lawyers would all be hired by the richest clients and the less rich clients would get raked over the coals. I'm not saying more lawyers would help, but fewer certainly wouldn't.
And remember, behind every sleazy lawyer is a sleazy client.
Lawyers also enjoy an unusual amount of immunity from prosecution.
Do what now? I must have missed discussion of that particular fringe benefit in law school.
Yes, you did need to provide a link because googling it shows that you are wrong. Promotional budgets at US pharmaceutical firms average 24.4% of their US domestic sales, less than half what you claimed. Here's another source saying 30%, and that's from a largely anti-big pharma report.
Don't get me wrong, I don't think pharma companies should spend (or necessarily be allowed to spend) so much money on advertising, especially direct-to-consumer advertising, but get your facts straight, especially when you're going to make such sweeping claims.
Good thing that software patents don't claim the software per se but rather the use of the software on a computer (i.e. a physical computing device), or the software as encoded on a physical, computer-readable storage medium.
A program in the abstract can be turned into a mathematical proof. But software in the real-world is not math. For example, consider Bresenham's line algorithm. The algorithm (or its equivalent mathematical proof) will not cause lines to appear on a computer screen. In patent terms, it lacks utility, an essential requirement of any patentable invention. But the same algorithm implemented as part of an executable program on a computer can be quite useful.
So that's why the "but software is just math, math isn't patentable, therefore software isn't patentable" argument fails. "Software" is math only in a highly abstract theoretical sense. As implemented on physical computing devices it is not. And it is only the latter type that is patentable.
The inconsistency it what causes all the problems.
How so? Because some applicants take advantage of inconsistency to sneak past questionable claims? Tightening things up may not result in perfect consistency, but as long as things are tightened up across the board then it should be an improvement.
And if you don't trust the PTO to get it right, how about moving to a registration scheme rather than an examination scheme and letting litigated patents get sorted out by the courts? Aggressive fee-shifting and the elimination of the presumption of validity would prevent the courts from being swamped with frivolous suits.
To be frank, my biggest problem with most of these suggestions is they come from law professors, who for the most part, have never practiced patent law in the real world. And even if they have, haven't done so for a very long time.
That's just the credentialism version of an ad hominem argument. And, as you seem to recognize, some law professors who make these kinds of recommendations have, in fact, practiced patent law in the real world for quite a while. I can think of one example with six years of experience and a couple of decades of consulting work on the side. Is that enough?
Two of their policy recommendations: "More rigorous enforcement of the claim definiteness standard would be an excellent step forward. ... One promising policy reform is greater use of fee-shifting to favor defendants in cases brought by trolls."
I am probably regarded as a pro-patent advocate here, but I have made those same recommendations on Slashdot in the past. For example, from October, 2010: "I am personally in favor of substantially tightening the enablement requirement (as well as the related written description requirement)." Enablement and written description are closely related to definiteness (they're all part of 112).
Or from earlier this year: "I favor greater use of fee-shifting in patent cases (i.e. patentee pays the other side's attorney's fees if the patent is invalidated)."
I say this not to say "I told you so" (I certainly didn't come up with the ideas on my own), but rather to point out that there are some important solutions that patent policy analysts agree on, even if they disagree about the nature or scope of the problems with the patent system. I think Bessen and Meurer are wrong about several things, but there's still common ground regarding policy recommendations.
That kind of offensive and misogynistic language is completely inappropriate. Anyone with mod points should moderate that comment into oblivion, and shame on those who moderated it up.
The scope of a patent is defined by its claims as read in light of the specification, but design patents only have one claim, which simply refers to the drawings in the patent specification. The figures in design patents are drawn in a very particular way. The most important thing to know is that only the solid lines matter. The dashed lines are only there to provide context and do not represent the claimed design. In this case, most of the laptop is drawn in dashed lines. It's a little hard to tell because of the relatively low-quality PDF, but it looks like only the lid is drawn in solid lines. Compare that to the parent design patent, D642172, which covers more of the case, the keyboard, etc.
Patent trolls do not license their patents.
Sure they do. How else do you think they make money? Even when they sue, the purpose of the suit is to force the defendant to take a license, either court-imposed or in settlement negotiations. In the case of a non-practicing entity, the purpose of an injunction is just to give the patentee leverage in the license negotiations. There are exceptions, such as a patentee that has an exclusive licensee and is suing to prevent others from using the technology, but ultimately that's about protecting the value of the original license.
The Harvard researchers didn't use gene therapy to lengthen the telomeres. They engineered a knock-in allele encoding a 4-hydroxytamoxifen (4-OHT)-inducible telomerase reverse transcriptase-Estrogen Receptor (TERT-ER) under transcriptional control of the endogenous TERT promoter. Basically, the mice had short telomeres and the researchers could reactivate telomerase by administering 4-OHT. That's genetic engineering, not gene therapy in adult mice.
Furthermore, the Harvard researchers showed the reversal of artificially-induced aging, but not an increase in lifespan. The researchers in this study demonstrated an increase in lifespan in normal mice.
The Harvard study showed that improving telomerase activity could reverse or slow aging, but it didn't show how to actually accomplish this in normal, adult organisms. That's what the researchers in this study have done, at least in mice.
No, the Harvard researchers didn't do the same thing. They genetically engineered mice to have short telomeres, inducing faster aging, and then reversed the process by reactivating telomerase. The mice didn't actually live longer than normal. By contrast, the researchers in this study used a single application of gene therapy to extend the lifespan of normal mice, and they did so using techniques that have already been used in humans to treat other conditions.
That would mean that, as a practical matter, no patent that included a software component would ever be infringed. The all elements rule requires each and every element of a claim to be present in order to find infringement. Thus, a patent on a new, useful, and nonobvious machine that happened to use a microcontroller would be worthless because it would never be infringed. A competitor would simply sell the machine and the software separately. The machine by itself would not infringe the patent, and selling and installing the software would not infringe the patent under your proposed rule. Trying to patent the machine without the software installed would not work either, since without the software the machine would not function and thus would fail the utility requirement.
This is an example of why, even if Congress were prepared to ban software patents, it would not be very easy to do so. Until there is a workable definition of "software patent," calls to ban software patents are equivalent to saying things like "we should stop crime." It may be a laudable goal, but without a workable plan for accomplishing that goal, it's not very helpful.
Right here.
Okay, great. Now turn that into a definition of "software patent" that is neither under- nor overinclusive, can be easily and unambiguously applied, and cannot easily be gamed.
(Yes, including 1. Think about it: could you patent both the machine in example 1, and the instruction manual for curing rubber using it, separately? Not really).
Actually, you could. Consider a simple rubber curing machine that has only one control: a thermostat. One coud patent that machine and one could patent a method of curing rubber using the machine, which gave various temperatures and hold times that produced a good product.
In the case of 5, why should that software be patentable? Any actual useful results from the software WOULD be patentable, provided they could be physically implemented. There is no need whatsoever to patent the software itself.
Sure there is. Such a program would be highly useful to the designers of rubber curing machines, as it would allow them to test new designs without having to build physical prototypes. For example, the Boeing 777 was the first aircraft designed entirely on computer, which was apparently a great improvement over the old design process. Why wouldn't we want to encourage such innovation?
I very much doubt he was seriously involved in the development of software products, except at a very high level.
Actually, Jobs was famous (some might say infamous) for involving himself in the tiniest details of user interface design and software features. See, e.g., this article: "The design process behind OS X 10.0 and Steve Jobs’ remarkable level of involvement".
But your example has nothing to do with software patents. It has to do with curing rubber.
Even number 5, which is strictly a patent on a computer program for modeling the rubber curing process and thus involves nothing physical, apart from the computer itself? What about a patent on a computer program for simulating the behavior of objects made of rubber (e.g. in a 3d modeling program)?
In this case the software is just a piece of the process, a tool. This is a lot different than, "patent a cursor by using XOR"
How is that different? The software is just a piece of the process for displaying a cursor. What's so different about a cursor on a computer screen and a piece of cured rubber? They're both useful, physical applications of a mathematical idea.
Programs ARE math. Yep, they are abstract things that you can't hold on your hand (didn't you notice it?). You'd better define better what you mean by "pounder", because depending on your definition, that'll indeed make a search result appear on your head/paper/computer.
Then allow me to be more clear: I mean programs in the context of software patents, which is the context in which we are discussing the issue. A software patent does not claim an algorithm by itself (i.e. the claim does not begin with "An algorithm, comprising ..."). It claims either a computer programmed in a particular way or a computer-readable medium on which the program is stored or a method for programming a computer or some other connection to a physical artifact. In the context of software patents, a program is tied to a physical device in a way that makes it both useful and concrete.
By "ponder" I meant to consider a program or mathematical algorithm in one's mind. The point is that one can "do math" in a way that is not covered by a software patent that claims a useful application of the same mathematical idea. This demonstrates that such a software patent is not a patent on the underlying mathematics.
No, programs ARE math buddy. Nothing else.
But software patents claim more than just a program. They claim a program running on a computer, or stored on a computer-readable medium. Consider, for example, this hypothetical claim: "A method for calculating a sum comprising a user entering two numbers into a computer followed by the computer calculating the sum of the numbers and displaying the sum on an output device." No amount of math (in the abstract sense) will cause a user to enter numbers into a computer or for the computer to display the sum. I can do math (e.g. prove theorems, use formulas to calculate results, etc) all day and never cause that to happen because it requires input from a person and output on a physical device. Neither of those are math.
And, to address your analogy, patenting software isnt equivelant to patenting a new wing design. It's equivelant to patenting to the math which you used to develop the new wing design.
You've only stated a conclusion, not given reasons for it. I gave reasons: both are embodiments of mathematical ideas that have useful applications in the physical world. The curve of an airplane wing is defined by physics, which is in turn defined by math. A patent on a wing design is, in that sense, a patent on an application of the equations that define an optimal wing. A computer program is defined by math, and a patent on software is a patent on the application of that math to achieve a useful result.
In order to ban software patents, one must first define software patents. I challenge anyone in favor of banning software patents to come up with a definition of the term that is neither under- nor overinclusive, can be easily and unambiguously applied, and cannot easily be gamed. Here are some example technologies to think about as you develop your definition:
1. A machine that cures rubber by heating and cooling it, controlled by hand.
2. A machine that cures rubber by heating and cooling it, controlled by a computer program using a new, nonobvious, and useful application of a mathematical equation.
3. A new and nonobvious kind of rubber curing machine that uses such a complex curing process that only a computer could control it, resulting in a significantly superior product.
4. A computer program for controlling the rubber curing process using a new, nonobvious, and useful algorithm that could only be carried out by a computer, resulting in a significantly superior product.
5. A computer program for modeling the rubber curing process using new, nonobvious, and useful applications of mathematical equations.
If you want to ban software patents, where do you draw the line?
All programs are math. If it isnt math you cannot run it on a COMPUTER.
No, programs use math. Math, in the abstract, is not useful. No amount of thinking about math will ever cause something to happen in the physical world. I can ponder the Page Rank algorithm all day long but that won't cause internet search results to spontaneously appear on my computer. Software patents cover using math to achieve a useful result. They satisfy the utility requirement of patent law in a way that math in the abstract does not and cannot.
Software engineers use math to achieve useful results in the same way that engineers in other fields use math to achieve useful results. There is no meaningful distinction between a novel algorithm leading to a more efficient program and, for example, a novel wing design (created using physics simulations based on math) leading to a more efficient airplane. They are both embodiments of mathematical ideas that have useful applications in the physical world.
Software patents are not patents on math because they are tied to machines, networks, sensor input, and other physical artifacts. No amount of thinking about matrix transformations will cause three dimensional graphics to appear on a computer screen. No amount of thinking about the Page Rank algorithm will cause internet search results to appear. A patent on an algorithm or a data structure is in no way a patent on the underlying math.
Just because some idiot lawyers redefined "software" as not being "math", because they couldn't grasp the math isn't enough reason to not ditch illegally granted patents.
I'm a lawyer, and I also have both bachelor's and master's degrees in computer science. I get the math just fine. The problem is a lot of engineers who don't understand the law.
nobody who is seriously involved in the development of software products can claim that software patents are a good thing
Would you consider Steve Jobs "seriously involved in the development of software products?" When he announced the original iPhone, he noted "and boy have we patented it." It's right there in the presentation as a bullet point, alongside "works like magic" and "no stylus." Later he pointed out that "We filed for over 200 patents for all the inventions in iPhone and we intend to protect them."
The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.
That's not accurate. Patents are presumed valid by statute, but they aren't presumed infringed. The plaintiff still has to make out a prima facie case of patent infringement, which the defendant can then rebut or defend against in some other way (e.g. by showing that the patent is invalid or unenforceable).
Because slavery was abolished at the constitutional level. Prior laws abolishing slavery typically did so gradually in ways that avoided takings claims. When Congress abolished slavery outright in the District of Columbia in 1862, it compensated slaveowners loyal to the Union. See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment , 94 Va. L. Rev. 1367, 1373 (2008).
I suppose a takings claim could be avoided if software patents were abolished by constitutional amendment, but that's incredibly unlikely.
The $500 billion figure has been cited a few times, including by Drew Curtis in his astonishingly poorly-informed talk about patent trolls. The event study methodology used in the Bessen et al. study has been criticized as likely to overestimate the costs attributed to patent trolls. See Glynn S. Lunney, Jr., On the Continuing Misuse of Event Studies: The Example of Bessen and Meurer, 16 J. Intell. Prop. L. 35 (2008) (responding to similar event studies done by Bessen and Meurer when they wrote their book Patent Failure).