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Re: The patent process [Was Re: Sharing the Family PC is Patent-Pending]

From: Stefaan A Eeckels
Subject: Re: The patent process [Was Re: Sharing the Family PC is Patent-Pending]
Date: Tue, 11 May 2004 18:53:41 +0200

On 11 May 2004 15:26:09 GMT
Alun <> wrote:

> Stefaan A Eeckels <> wrote in 
> > The problems with software patents are:
> > 
> > 1. There is no need to construct a prototype and
> >    perfect the device - most software patents concern
> >    rather trivial ideas, that take little time to code
> >    and don't require code, as the language of the
> >    patent is about as far from a computer language as
> >    possible. This reduces the value of the "disclosure"
> >    to zero.
> I would have no problem with the idea of requiring source code, but the
> law would have to be changed. Present legal standards don't require it.

And they should. The current terminology evolved from
the original target of patents, mechanical devices. 

> > 2. The patent examiners aren't software professionals,
> >    and the patent verbiage makes it very difficult
> >    for software professionals to understand the purported
> >    invention. As a result, almost anything can be 
> >    patented.
> I don't think the conclusions follow from the premises in that. I think 
> most of us who are patent professionals agree that the reason that bad 
> software patents issue is that the examiners mostly look at existing 
> patents for prior art. Since software wasn't always patentable, it is a 
> given that most really basic ideas won't be found in their search, and
> so they are then compelled to allow the patent.

Well, if they were software professionals, they'd know that
the field didn't materialise out of thin air when the patent
legislation was broadened to include software. In any case,
the description of a software patent is so far removed from
the reality of devising and writing software that it's 
a) for determining prior art
b) for disclosure (i.e. enabling the use of the so-called
   invention by others).
> > 3. We're no longer dealing with individual inventors or
> >    small companies with limited resources, but with huge
> >    corporations that can afford frivolous litigation as
> >    a means of crushing emerging competition.
> Right. One of the things that ought to be done to combat that is to
> remove the presumption of validity of issued patents, and the FTC have
> recommended that.

Excellent move. Let's hope it gets accepted.

> > 4. As said above, the value of the disclosure is not 
> >    related to the advantages granted by the patent. Software
> >    patents should require the submission of working code, i.e.
> >    a complete, working system clearly demonstrating the 
> >    invention. The archaic and ridiculous language in which
> >    patents are cast should be abolished, as it offers too
> >    much power to patent attorneys, and makes it impossible
> >    for skilled programmers to understand the claims.
> >
> I don't see how a plain language requirement would work. Patents are 
> written from scratch, and those of us who write them use certain terms
> and certain ways of writing things for legal precision, not to confuse
> others, beleive it or not.

But the languages that can be used to describe a software
invention is source code, and, for example, modelling 
conventions such as UML. They are -when it comes to software-
far more precise than the crufty patentese (which evolved
from describing mechanical devices, and got burdened by
generations and generations of lawyers intent on hitting
each other on the head rather than describing an invention).
It might be precise for _you_, but it is gobbledygook for
even the most clue-up CS major. We can no longer write code
without having to ask a patent professional (who doesn't
read source code, usually) if what we're writing might be
patented. And even then, these people (who're lawyers) tend
to answer in "maybe"s, "possible"s, and "we should test it
in court"s. 

> > The patent system should not merely have been extended to
> > software, but revamped to take into account the specifics
> > of software. A naive idea, obviously, as it doesn't suit the
> > interests of those who leech off the system (government, patent
> > professionals, litigation departments of large corporates).
> > 
> It would suit me just fine to have special rules for software, but we 
> don't, so I have to work with what we have.

I accept that - but where the drawings of the old patents
made some sense to the mechanical engineers of yonder,
they hinder understanding of the software patents by software
engineers. As a result, they are counterproductive when it
comes to promoting the discovery of inventions in software, and
benefit solely the administrators of the system (who, as I 
indicated by using the derogatory term "leeches" (NOM), live off
the system without being productive). It should not be up
to programmers to study patentese, but up to patent professionals
to acquire the required working knowledge of the field they
purport to "serve".

Take care,

"What is stated clearly conceives easily."  -- Inspired sales droid

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