You need to read my other comments to understand better how the patent system works.
And also to actually read some software patents.
In practice, the patent system has no concepts of software or hardware. This straw man was invented by slashdot and the free software movement.
This is scare-mongering.
The patent system can never have the concept of software or hardware because it would be easy, technically, work around such concepts.
An invention must have a specific practical appication to patentable. This criteria has always been there.
This means that if it is PURE software that can be generally used for any purpose, then it can be considered like a mathematical formula, and is not patentable.
Software and hardware are conceptually seperable because it is convenient, and there is no legal reason to make them conceptually one.
Should a legal reason come about, I am sure YOU would quite easily be able to come up with a device where the software and hardware blur into each other.
Because it is so easy to do this, this is EXACTLY why the patent system does not distinguish "software" "hardware" etc. It would be to easy for engineers to work around the legal terminology.
Instead it has terminolgy "utility" "novel" "practical usefulness".
So your words actually proove my argument extremely well.
I.e. that it would be useless for the patent system ever to distinguish between software and hardware.
A patented novel step can be violated through any means.
You may write software that violates the novel steps of a hardware patent.
The demarcation is better described in terms of the utility. If you violate a patent that targets a utility unrelated to the utility you are targeting, this is a MUCH better way to defend your right to use someone elses novel steps.
I.e. rather than saying "I have a right to use novel steps because mine is just software", say instead "I have a right to use someone elses novel steps because his is a combined harvestor used for thrashing wheat, and mine is related to sealing rooves against the rain."
What is excluded are inventions that are purely software.
All patents currently in the patent system (if you read them) already assume that a pure software patent is inadmissible and word their invention as a physical device that proceeds through a sequence of novel steps.
So the article that excludes software patents is inconcequential to the defensibility of all past patents, and practically changes nothing about future patents.
The domain of patents is defined in patent law as something having specific practical utility.
The PURPOSE of the invention makes it patentable, not HOW the invention is implemented (i.e. software vs hardware).
The idea that the patent system can ever restrict patents based on whether they are software/no-software math/not-math is a straw man that the Free Software community invented.
Even PURE software patents (when you read them, which you clearly have not) do not mention software. They explain the process as a sequence of steps.
It is the novel sequence of steps that is patentable. It could be a robotic bear dispensor or a computer that displays pictures of bear. Software or hardware does not matter.
I write C code for a living, and have been doing so for 15 years.
I am not suggesting any changes to the patent system.
I am explaining how patents CURRENTLY works to those who clearly are vacent of such knowledge. Specifically, that the patent system CURRENTLY is agnostic to concepts like "software", and that even the addition of such exclusions would not practically change what kind of patents can be registered or defended.
On the other hand, YOU do not sound like you have ever spent time reading software patents or trying to register or defend a patent.
The idea of people being sued all the time and having to worry about being sued is an invention of the Free Software movement.
Have you ever been sued over a patent?
Having to worry about being sued is a ficticious paranoia that people have who do not understand law. In the extremely unlikely event that you, who do not make millions on your software, do get sued, then simply change your software so that it does not infringe the patent. If that doesn't work, write a representation to the court, or negotiate with the other party. If that doesn't work, present your case to the court. You don't even need a lawyer (unless you are a complete idiot and like to be manipulated).
Finally if you loose, argue that you agree to withdraw your software from the market, but that you have caused the other party no damages. Finally if that doesn't work, argue that you have no money.
The chances of a small enterprise EVER having to unfairly pay out of its pocket to some multinational corporate for violating a patent are as close as fart to absolute ZERO.
You don't sound like you have ever had experience trying to acquire or defend a patent of ANY kind.
Whether you violate a patent or not can only be deduced by analizing the complex terminology of the patent claim text.
(You don't sound like you have ever read patent claims.)
If there is patent claim text that overlaps with what you are doing, and a company that owns that claim perceives damages then, yes, it is foreseeable that they could try to sue you EVEN IF it is only one claim item.
Once again, this has nothing to do with whether this is about software or hardware or both.
In actual fact, software patents do not mention the word "software" or "computer program". They explain methods and steps, as though they were describing a mechanical icecream machine, etc.
So AGAIN the concept of the "software patent" is purely a straw man, invented by you, so that you can have something to shout about.
The USPTO and EPO grant patents based on the criteria of it having an embodiment and being a useful thing (with specific utility).
With or without software terminology exclusions, any software program, math formula, or sequence of steps can be patented if it has a specific physical utility.
To try "stop" this can only be done by also excluding the kinds of things you would want inventors to be able to get patent protection on.
You are so right that you prove the oposite point:
YOU are basically admitting that there is no point in trying to classify inventions as software vs non-software because patent lawyers can always shoehorn the one into the other.
What you can and cannot get sued over is a completely seperate discussion to what is acceptable for submission to the EPO and USPTO.
In any case, the court will not exclude a suite a priori just because there is a component of the invention that you did not supply as part of the sale. And AGAIN this has nothing to do with software vs hardware. You could be selling a mathematical formula that is patented by an appliance that does X ray tomography. You are still violating the patent of the X rag machine.
> So that means if I sell software, without any hardware with > it, then I'm not infringing on _any_ software patents, right?
Yes you are infringing - even if the patent you are infringing is an outright hardware patent and your software can never be used on such hardware.
There is no definition of "software" anywhere within the patent system. What you patent just has to have practical utility in an "embodiment". For example, it can't be a math formula - it has to be a math formula with a specific physical application.
The idea of software vs non-software is pure fiction invented by slashdot readers and the like.
The patent system has different terms in different countries, but the criteria of "having practical and specific utility" more-or-less covers them all.
In particular, NO patent criteria mention "software" in any patent jurisdiction in this solar system.
The difference between a software patent and a hardware patent is the addition of the following phrase in the patent text: "A hardware appliance comprising of a CPU and volatile or non-volatile storage, and..."
Which all patent documents to do with software will have anyway because it saves them having to draft the text over for each jurisdiction.
So this whole anti-patent-software picketing is by people that don't read patents nor understand the patent system.
So they get recorded - so what!!??
on
Life Recorder
·
· Score: 1
Ok, Mr Big attacks you and gets recorded. Explain how that helps you?? So now, at the end of each year, the police have 10,000 pieces of video footage of people attacking victims; instead of 10,000 verbal descriptions. One for each case file opened.
Considering the miriad of types of information that are used to track crimes like this, video footage will add very little really.
The biggest problem with police detective work is NOT a lack of information. It's pooling and cross-referencing the existing information together in a meaningful way.
For instance an attack that happens within 100 feet walking distance from another attack at the same time in the afternoon on a different Tuesday.
"This isn't about laziness, it's about convenience and efficiency"
Yeah right! If it is so convenient, then why does only the most minute fraction of the population (all with the exact same set of personality characteristics) use it?
Bottom line is - there is a more-or-less one-to-one correlation between the sets of people who:
1. outright violate copyright on a grand scale.
2. are poor earners, social misfits, highly-vocal-complainers-about-
the-woe-of-the-planets-intellectual-property-legislation, and complain
endlessly about the-rights-of-poor-me-being-afringed-by-the-evil-gods-
of-BigCorp, and ALSO feel real pain whenever they pay for a DVD.
Now why on earth would someone feel pain paying for a DVD?
And why on earth would this someone also want to use the jurisprudance arguments of "rights" and "freedom" to enable him to not have to pay.
Don't compare the 0.01 % of clowns that "do nothing but download garbage all day because they are too lazy to walk down the block to the DVD rental" with the 99.99 percent of normal people that use their Internet connection in a moderate and intellegent way.
Slashdot Mirror
Please go read some patents
-paul
when it happens even once, then we can start discussing it.
otherwise it is pure speculation
-paul
You need to read my other comments to understand better how the patent
system works.
And also to actually read some software patents.
In practice, the patent system has no concepts of software or hardware.
This straw man was invented by slashdot and the free software movement.
This is scare-mongering.
The patent system can never have the concept of software or hardware
because it would be easy, technically, work around such concepts.
An invention must have a specific practical appication to patentable.
This criteria has always been there.
This means that if it is PURE software that can be generally used for
any purpose, then it can be considered like a mathematical formula,
and is not patentable.
-paul
You don't know that what you are saying is true. You are just speculating.
You have never been sued and you don't know anyone personally who has.
So this is called scare-mongering.
The purpose of law is to be fair.
Argue your point in front of a judge and THEN come back and talk about
how unfair he was.
Rather than trying to convince people to change a patent system based
on speculative thought-experiments about law-suites that never happened.
-paul
Software and hardware are conceptually seperable because it is
convenient, and there is no legal reason to make them conceptually
one.
Should a legal reason come about, I am sure YOU would quite
easily be able to come up with a device where the software
and hardware blur into each other.
Because it is so easy to do this, this is EXACTLY why the patent
system does not distinguish "software" "hardware" etc. It would
be to easy for engineers to work around the legal terminology.
Instead it has terminolgy "utility" "novel" "practical usefulness".
So your words actually proove my argument extremely well.
I.e. that it would be useless for the patent system ever to
distinguish between software and hardware.
-paul
FlorianMueller you are exactly correct.
A patented novel step can be violated through any means.
You may write software that violates the novel steps
of a hardware patent.
The demarcation is better described in terms of the utility.
If you violate a patent that targets a utility unrelated to the
utility you are targeting, this is a MUCH better way to defend
your right to use someone elses novel steps.
I.e. rather than saying "I have a right to use novel steps because
mine is just software", say instead "I have a right to use someone
elses novel steps because his is a combined harvestor used
for thrashing wheat, and mine is related to sealing rooves
against the rain."
This is how the patent system currently works.
-paul
No, please read above.
What is excluded are inventions that are purely software.
All patents currently in the patent system (if you read them) already
assume that a pure software patent is inadmissible and word their
invention as a physical device that proceeds through a sequence of
novel steps.
So the article that excludes software patents is inconcequential
to the defensibility of all past patents, and practically changes nothing
about future patents.
-paul
The domain of patents is defined in patent law as something having
specific practical utility.
The PURPOSE of the invention makes it patentable, not HOW the
invention is implemented (i.e. software vs hardware).
The idea that the patent system can ever restrict patents based on
whether they are software/no-software math/not-math is a straw man
that the Free Software community invented.
Even PURE software patents (when you read them, which you clearly
have not) do not mention software. They explain the process as a
sequence of steps.
It is the novel sequence of steps that is patentable. It could be a
robotic bear dispensor or a computer that displays pictures of
bear. Software or hardware does not matter.
-paul
I write C code for a living, and have been doing so for
15 years.
I am not suggesting any changes to the patent system.
I am explaining how patents CURRENTLY works to those who
clearly are vacent of such knowledge. Specifically, that
the patent system CURRENTLY is agnostic to concepts
like "software", and that even the addition of such exclusions
would not practically change what kind of patents can be
registered or defended.
On the other hand, YOU do not sound like you have
ever spent time reading software patents or trying
to register or defend a patent.
-paul
No, it makes sense to shut up, in order to avoid sounding fucking stupid.
The idea of people being sued all the time and having to worry
about being sued is an invention of the Free Software movement.
Have you ever been sued over a patent?
Having to worry about being sued is a ficticious paranoia that
people have who do not understand law. In the extremely unlikely
event that you, who do not make millions on your software, do get
sued, then simply change your software so that it does not infringe
the patent. If that doesn't work, write a representation to the court,
or negotiate with the other party. If that doesn't work, present your
case to the court. You don't even need a lawyer (unless you are a
complete idiot and like to be manipulated).
Finally if you loose, argue that you agree to withdraw your software
from the market, but that you have caused the other party no
damages. Finally if that doesn't work, argue that you have no
money.
The chances of a small enterprise EVER having to unfairly pay out
of its pocket to some multinational corporate for violating a patent
are as close as fart to absolute ZERO.
-paul
You don't sound like you have ever had experience trying
to acquire or defend a patent of ANY kind.
Whether you violate a patent or not can only be deduced
by analizing the complex terminology of the patent claim
text.
(You don't sound like you have ever read patent claims.)
If there is patent claim text that overlaps with what you are
doing, and a company that owns that claim perceives
damages then, yes, it is foreseeable that they could try
to sue you EVEN IF it is only one claim item.
Once again, this has nothing to do with whether this is
about software or hardware or both.
In actual fact, software patents do not mention
the word "software" or "computer program". They
explain methods and steps, as though they were
describing a mechanical icecream machine, etc.
So AGAIN the concept of the "software patent" is
purely a straw man, invented by you, so that you
can have something to shout about.
-paul
Judges don't grant patents.
The USPTO and EPO grant patents based on the criteria
of it having an embodiment and being a useful thing (with
specific utility).
With or without software terminology exclusions, any
software program, math formula, or sequence of steps
can be patented if it has a specific physical utility.
To try "stop" this can only be done by also excluding
the kinds of things you would want inventors to be able to
get patent protection on.
-paul
Math is patentable the same way that software is patentable:
If there is a demonstrable physical embodiment. Like a device.
It is not about what should.
It is about the fact that it is *inevitable* that you can always spin
a patent as a physical device.
So there is no point in trying to wangle obtuse terminology to
exclude things that will always be patentable by another vehicle.
-paul
> That some patent lawyers attempt to shoehorn
You are so right that you prove the oposite point:
YOU are basically admitting that there is no point in trying
to classify inventions as software vs non-software because
patent lawyers can always shoehorn the one into the other.
-paul
I understood perfectly the first time.
What you can and cannot get sued over is a completely
seperate discussion to what is acceptable for submission
to the EPO and USPTO.
In any case, the court will not exclude a suite a priori just
because there is a component of the invention that you
did not supply as part of the sale. And AGAIN this has
nothing to do with software vs hardware. You could be
selling a mathematical formula that is patented by an
appliance that does X ray tomography. You are still
violating the patent of the X rag machine.
Exactly my point. You are reading this incorrectly. It merely says
that inventions that are PURELY composed of "schemes, rules..."
are not patentable.
If they have a physical embodiment, then of course they are.
In any case the exclusion of the bold text does not change
anything. It is already covered by "rules and schemes" and
"mathematical mehods".
> So that means if I sell software, without any hardware with
> it, then I'm not infringing on _any_ software patents, right?
Yes you are infringing - even if the patent you are infringing
is an outright hardware patent and your software can never be
used on such hardware.
There is no definition of "software" anywhere within the patent
system. What you patent just has to have practical utility in
an "embodiment". For example, it can't be a math formula -
it has to be a math formula with a specific physical application.
The idea of software vs non-software is pure fiction invented
by slashdot readers and the like.
The patent system has different terms in different countries,
but the criteria of "having practical and specific utility"
more-or-less covers them all.
In particular, NO patent criteria mention "software" in any
patent jurisdiction in this solar system.
-paul
The difference between a software patent and a
hardware patent is the addition of the following
phrase in the patent text: "A hardware appliance
comprising of a CPU and volatile or non-volatile
storage, and..."
Which all patent documents to do with software
will have anyway because it saves them having to
draft the text over for each jurisdiction.
So this whole anti-patent-software picketing is by
people that don't read patents nor understand the
patent system.
-paul
so true
-paul
Ok, Mr Big attacks you and gets recorded.
Explain how that helps you?? So now, at the end
of each year, the police have 10,000 pieces of
video footage of people attacking victims; instead
of 10,000 verbal descriptions. One for each case
file opened.
Considering the miriad of types of information
that are used to track crimes like this, video
footage will add very little really.
The biggest problem with police detective work
is NOT a lack of information. It's pooling and
cross-referencing the existing information
together in a meaningful way.
For instance an attack that happens within
100 feet walking distance from another attack
at the same time in the afternoon on a different
Tuesday.
Now THAT tells more than any video footage.
no, I'm not being sarcastic
"This isn't about laziness, it's about convenience and efficiency"
Yeah right! If it is so convenient, then why does only the most minute
fraction of the population (all with the exact same set of personality
characteristics) use it?
Bottom line is - there is a more-or-less one-to-one correlation between
the sets of people who:
1. outright violate copyright on a grand scale.
2. are poor earners, social misfits, highly-vocal-complainers-about-
the-woe-of-the-planets-intellectual-property-legislation, and complain
endlessly about the-rights-of-poor-me-being-afringed-by-the-evil-gods-
of-BigCorp, and ALSO feel real pain whenever they pay for a DVD.
Now why on earth would someone feel pain paying for a DVD?
And why on earth would this someone also want to use the jurisprudance
arguments of "rights" and "freedom" to enable him to not have to pay.
Gee I wonder.
-paul
Don't compare the 0.01 % of clowns that "do nothing but download garbage all day because they are too lazy to walk down the block to the DVD rental" with the 99.99 percent of normal people that use their Internet connection in a moderate and intellegent way.
This stops mailware:
http://protobalance.com/
-paul