It grates on me to hear you claim that 10% of software patents are "totally valid and legal." They are in effect legal because the USPTO and certain lower court decisions validated them, but the US Supreme Court has always, always, always declared algorithms not to be statutory material for a patent. Their last word on the subject (Diehr) clearly would not allow "a competent draftsman to evade" the law about what is and isn't patentable by careful wording of the application.
Just to be clear, the Court did not rule that all software was nonstatutory, just all software for general-purpose digital computers, since such software is in essence a mathematical algorithm. Software that doesn't clearly fall into that category (say, RISC pipelining) is rarely claimed in the patents that come up in slashdot stories, and even those aren't necessarily "totally valid and legal." The Court said legislative clarification was needed.
I'll take what you're saying a step farther. If Berners-Lee had tried to make the web proprietary, the NCSA never would have written Mosaic, the IMG tag would be on hold for years, and something else would have been developed and grabbed everybody's interest. Nobody outside of CERN would ever hear about the WWW.
This is why everybody likes to retell the "invented the Internet" joke:
Bush lying about healthcare isn't funny.
Bush pointing to legislation passed over his veto as reason why you could trust him to be "The Education President" isn't funny.
Bush's campaign manager saying that the reason he got pulled over while driving drunk was "he was probably going to slow" when he actually hit a tree is not funny. What if it had been a person?
Bush putting forward as justification for going to war intel that his own administration didn't believe was true isn't funny.
Gore saying he invented the Internet, that's funny. Even though that's not really what he said.
If the author had used Lisp, he wouldn't have written that a 25% increase in the complexity of the problem results in a 100% increase in the complexity of the solution.
He also wouldn't have written that quality tools/techniques aren't important. Quality programmers will spend a large chunk of the lifecycle choosing and/or developing appropriate tools/techniques to attack the problem.
Seriously, until it was made to the masses with a non-scientific use did it matter to the public.
Be careful. That's the kind of mindset that made Al Gore the butt of jokes for years.
legislative initiative in creating the Internet
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The "Internet" as we know it today is a network open to everybody, not just schools, military, government, and a few select companies. Al Gore did in fact show initiative in pushing legislation to create what we have today. Get the full story.
However, you're right that the Al Gore joke is funny. Lies about drunk driving, legislation that was passed over your veto, and "compassionate conservatism" just don't have as much humor potential.
Generally speaking, you're right. Any patent that essentially covers an algorithm that can be executed on any general-purpose digital computer is what you describe, and is not patentable according to the US Supreme Court. However, there may be some software that doesn't fit this description, so they were never willing to unequivocally say that no software could ever be patented. Only software that, as claimed, would preempt an algorithm being used on any general-purpose digital computer. In other words, about every software patent that's ever been talked about on slashdot. They're all invalid, but nobody listens to what the Supreme Court said. They've said all they're going to say and probably won't take another case on the issue.
Sun does not make money directly off of the popularity of Java. People who develop Java server apps and need to move to high-end servers might go to Sun, but they might just as easily go to IBM. Where would they be going if it wasn't a Java app? Probably the same vendors.
I noticed it doesn't necessarily imply a single school. In no way does my guess that the story is false hinge on there being only one school. In fact, I only mentioned the one-school scenario as the case that would require the least stretching to make this far-fetched tale believable. The closer you get to 1500 business schools, the more certain you can be that the story is a lie.
Even given a primary source, I'd find the claim highly questionable. One in 15 business school majors becoming millionaires seems unlikely, especially in 1980 dollars. If this really happened at some super successful business school, it would be worth naming the particular school. This smells an awful lot like a snake-oil vendor dangling false visions of wealth in front of people.
I'm surprised to see so many comments that show people actually read the article before posting. Now we just need to get people to skim prior posts before posting.
You don't know how good somebody is until you work closely with them. You don't know how good most of your 60 techs are. I take it you have seen at least two cases where women asked for advice and projected from that onto all women being incompetent. Problem was, you worked closely enough with one to see that your perception was false in at least her case. How good are the males among your 60 techs? I bet many of them are quietly accomplishing little or nothing, or wasting time going in a bad direction. They should probably be asking advice, like the women you judged as incompetent did.
PostgreSQL adheres to the standards more than MySQL, so you're using a language with broader industry adoption if you use PostgreSQL. Especially from someone who says, "If X then we'll use Oracle", you ought to know that PostgreSQL would make migration to/from Oracle easier.
Do you find anywhere that the majority said the equation was non-obvious? I read in section III, "Their process admittedly employs a well-known mathematical equation."
If the software has novelty and non-obviousness, then "considered as a whole" it contains novelty and non-obviousness.
No, "considered as a whole" can only mean novelty and non-obviousness in the way constituent parts are combined. Your interpretation "would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection." The majority opinion was very specific about avoiding this, and went into excruciating detail that they weren't changing anything that had been said in prior opinions.
None of these patents for "a storage medium containing software..." are validated by Diamond v. Diehr.
In order for the dissent to reach its conclusion it is necessary for it to read out of respondents' patent application all the steps in the claimed process which it determined were not novel or "inventive."
The majority is only saying that the dissent determined certain parts were not novel. The majority itself seems to assume that issues of novelty and obviousness remain open on remand. See the last paragraph in my abridged version, Majority section III.
It would take a lot for new justices to break the precedent set in so many prior decisions.
There will always be a tremendous demand for software development. Competition may hurt some individual companies that would lean too much on their monopolies, but in each case some other company will win. The overall industry will thrive.
Any company that spends tons of money on software R&D is wasting its time anyway. Good ideas are not hard to come by. As other posters have pointed out, it's good implementations that are in short supply, and copyright is sufficient to protect those.
The patents you mention would have been ruled invalid if the cases had made it to the supreme court. Among those misinterpreting Diamond v. Diehr are the USPTO and at least once circuit court of appeals. Thus the mess we have now. The software industry was growing by leaps and bounds back when nobody expected patent protection. There's no reason to think it will hurt the industry if the USPTO and lower courts start adhering to the law again.
US Judges have already "defeated" software patents without needing to invoke the constitution. Apparently existing statute already excludes abstract ideas, mathematical algorithms and computer software.
It used to be that even inclusion of software as part of a patent application would mean it got rejected. When the Supreme Court opined, "a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program or digital computer," a lot of people took that as license to make software patents, even though the Court did not want to "allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection."
The full Diamond v. Diehr opinion is available various places on the web, but you may find my Diamond v. Diehr, Abridged more readable.
I believe you are right that software patents simply aren't legal, but I believe the Bitlaw page you link to is inaccurate. It says,
The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm, but was a process for molding rubber, and hence was patentable. This was true even though the only "novel" feature of this invention was the timing process controlled by the computer.
In fact, the Court also cited the continuous measurement of temperature as novel.
Respondents characterize their contribution to the art to reside in the process of constantly measuring the actual temperature inside the mold. According to the respondents, the continuous measuring of the temperature inside the mold cavity, the feeding of this information to a digital computer which constantly recalculates the cure time, and the signaling by the computer to open the press, are all new in the art.
This, not whether software is patentable, is what separated the majority from the dissent. The dissent writes,
As the Court reads the claims in the Diehr and Lutton patent application, the inventors' discovery is a method of constantly measuring the actual temperature inside a rubber molding press. As I read the claims, their discovery is an improved method of calculating the time that the mold should remain closed during the curing process. If the Court's reading of the claims were correct, I would agree that they disclose patentable subject matter. On the other hand, if the Court accepted my reading, I feel confident that the case would be decided differently.
I don't know if I was the one you conversed with on this before. I hope not, because I would hate to leave your question unanswered.
It may in fact be a bizzarre thing to say (using "claim" here confuses things), but it's how the majority opinion characterized the claims of the patent. It's the second paragraph in my abridged version:
Respondents characterize their contribution to the art to reside in the process of constantly measuring the actual temperature inside the mold. According to the respondents, the continuous measuring of the temperature inside the mold cavity, the feeding of this information to a digital computer which constantly recalculates the cure time, and the signaling by the computer to open the press, are all new in the art.
You may be right that this is not what the patent is claiming; after all, the dissent agrees with you.
As the Court reads the claims in the Diehr and Lutton patent application, the inventors' discovery is a method of constantly measuring the actual temperature inside a rubber molding press. As I read the claims, their discovery is an improved method of calculating the time that the mold should remain closed during the curing process. If the Court's reading of the claims were correct, I would agree that they disclose patentable subject matter. On the other hand, if the Court accepted my reading, I feel confident that the case would be decided differently.
You see, the dissent hinges on what is claimed in this specific patent, not on whether software is patentable. Though the dissent also took this as an opportunity for a long rant against software patents, that was not where their disagreement with the majority lay.
Slashdot Mirror
It grates on me to hear you claim that 10% of software patents are "totally valid and legal." They are in effect legal because the USPTO and certain lower court decisions validated them, but the US Supreme Court has always, always, always declared algorithms not to be statutory material for a patent. Their last word on the subject (Diehr) clearly would not allow "a competent draftsman to evade" the law about what is and isn't patentable by careful wording of the application.
Just to be clear, the Court did not rule that all software was nonstatutory, just all software for general-purpose digital computers, since such software is in essence a mathematical algorithm. Software that doesn't clearly fall into that category (say, RISC pipelining) is rarely claimed in the patents that come up in slashdot stories, and even those aren't necessarily "totally valid and legal." The Court said legislative clarification was needed.
I'll take what you're saying a step farther. If Berners-Lee had tried to make the web proprietary, the NCSA never would have written Mosaic, the IMG tag would be on hold for years, and something else would have been developed and grabbed everybody's interest. Nobody outside of CERN would ever hear about the WWW.
Doesn't sound like this box will be getting a lot of mileage out of apt-get, etc. Why do you even care which distro it runs?
If the author had used Lisp, he wouldn't have written that a 25% increase in the complexity of the problem results in a 100% increase in the complexity of the solution.
He also wouldn't have written that quality tools/techniques aren't important. Quality programmers will spend a large chunk of the lifecycle choosing and/or developing appropriate tools/techniques to attack the problem.
However, you're right that the Al Gore joke is funny. Lies about drunk driving, legislation that was passed over your veto, and "compassionate conservatism" just don't have as much humor potential.
Generally speaking, you're right. Any patent that essentially covers an algorithm that can be executed on any general-purpose digital computer is what you describe, and is not patentable according to the US Supreme Court. However, there may be some software that doesn't fit this description, so they were never willing to unequivocally say that no software could ever be patented. Only software that, as claimed, would preempt an algorithm being used on any general-purpose digital computer. In other words, about every software patent that's ever been talked about on slashdot. They're all invalid, but nobody listens to what the Supreme Court said. They've said all they're going to say and probably won't take another case on the issue.
Sun does not make money directly off of the popularity of Java. People who develop Java server apps and need to move to high-end servers might go to Sun, but they might just as easily go to IBM. Where would they be going if it wasn't a Java app? Probably the same vendors.
I noticed it doesn't necessarily imply a single school. In no way does my guess that the story is false hinge on there being only one school. In fact, I only mentioned the one-school scenario as the case that would require the least stretching to make this far-fetched tale believable. The closer you get to 1500 business schools, the more certain you can be that the story is a lie.
Even given a primary source, I'd find the claim highly questionable. One in 15 business school majors becoming millionaires seems unlikely, especially in 1980 dollars. If this really happened at some super successful business school, it would be worth naming the particular school. This smells an awful lot like a snake-oil vendor dangling false visions of wealth in front of people.
I'm surprised to see so many comments that show people actually read the article before posting. Now we just need to get people to skim prior posts before posting.
When did the Java garbage collector ever fail to deal with circular references? Real GCs don't work by reference counts.
You don't know how good somebody is until you work closely with them. You don't know how good most of your 60 techs are. I take it you have seen at least two cases where women asked for advice and projected from that onto all women being incompetent. Problem was, you worked closely enough with one to see that your perception was false in at least her case. How good are the males among your 60 techs? I bet many of them are quietly accomplishing little or nothing, or wasting time going in a bad direction. They should probably be asking advice, like the women you judged as incompetent did.
PostgreSQL adheres to the standards more than MySQL, so you're using a language with broader industry adoption if you use PostgreSQL. Especially from someone who says, "If X then we'll use Oracle", you ought to know that PostgreSQL would make migration to/from Oracle easier.
Do you find anywhere that the majority said the equation was non-obvious? I read in section III, "Their process admittedly employs a well-known mathematical equation."
There are more and more inexpensive services using User-Mode Linux, so security hacks like the one you propose are getting less and less important.
None of these patents for "a storage medium containing software..." are validated by Diamond v. Diehr.
It would take a lot for new justices to break the precedent set in so many prior decisions.
There will always be a tremendous demand for software development. Competition may hurt some individual companies that would lean too much on their monopolies, but in each case some other company will win. The overall industry will thrive.
Any company that spends tons of money on software R&D is wasting its time anyway. Good ideas are not hard to come by. As other posters have pointed out, it's good implementations that are in short supply, and copyright is sufficient to protect those.
The patents you mention would have been ruled invalid if the cases had made it to the supreme court. Among those misinterpreting Diamond v. Diehr are the USPTO and at least once circuit court of appeals. Thus the mess we have now. The software industry was growing by leaps and bounds back when nobody expected patent protection. There's no reason to think it will hurt the industry if the USPTO and lower courts start adhering to the law again.
US Judges have already "defeated" software patents without needing to invoke the constitution. Apparently existing statute already excludes abstract ideas, mathematical algorithms and computer software.
It used to be that even inclusion of software as part of a patent application would mean it got rejected. When the Supreme Court opined, "a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program or digital computer," a lot of people took that as license to make software patents, even though the Court did not want to "allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection."
The full Diamond v. Diehr opinion is available various places on the web, but you may find my Diamond v. Diehr, Abridged more readable.
In fact, the Court also cited the continuous measurement of temperature as novel.
This, not whether software is patentable, is what separated the majority from the dissent. The dissent writes,
I don't know if I was the one you conversed with on this before. I hope not, because I would hate to leave your question unanswered.
It may in fact be a bizzarre thing to say (using "claim" here confuses things), but it's how the majority opinion characterized the claims of the patent. It's the second paragraph in my abridged version:
You may be right that this is not what the patent is claiming; after all, the dissent agrees with you.
You see, the dissent hinges on what is claimed in this specific patent, not on whether software is patentable. Though the dissent also took this as an opportunity for a long rant against software patents, that was not where their disagreement with the majority lay.
Does this answer your question?