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Re: Why are software patents wrong?

From: threeseas
Subject: Re: Why are software patents wrong?
Date: Mon, 18 Oct 2004 16:14:50 GMT
User-agent: Mozilla Thunderbird 0.7.1 (X11/20040626)

Alexander Terekhov wrote:
"Paul Hovnanian P.E." wrote:

Software is the implementation of an algorithm, which is not patentable.

Really? Sez who?

Copyright law is more suitable for the protection of software.


(rather than an indirect party of industry or lawyer group)



Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

   1. literary works;
   2. musical works, including any accompanying words
   3. dramatic works, including any accompanying music
   4. pantomimes and choreographic works
   5. pictorial, graphic, and sculptural works
   6. motion pictures and other audiovisual works
   7. sound recordings
   8. architectural works

These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

Several categories of material are generally not eligible for federal copyright protection. These include among others:

* Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

* Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

* Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

* Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

IS there contridiction here?

But then what about Patents....

BTW, contrary to the information at the google link you provided, there is NO ASSUMED qualification that a program is always written in such a manner to provide increased ease of use or improved productivity. As a matter of fact, the product produced by MS are created with teh mindset of making people need MS, which leads to many prolems not fitting patent qualification, but rather illegal monoplization, not to mention the inherent manifestation of the "user frustration function" as the sum result of that mindset.

Patents: (from my own site
but clipped from the USPTO site -- so I don't have the USPTO link handy ATM)


The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.

In the language of the statute, any person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent, subject to the conditions and requirements of the law. The word process is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term machine used in the statute needs no explanation. The term manufacture refers to articles which are made, and includes all manufactured articles. The term composition of matter relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything which is made by man and the processes for making the products.

The patent law specifies that the subject matter must be useful. The term useful in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.

Interpretations of the statute by the courts have defined the limits of the field of subject matter which can be patented, thus it has been held that the laws of nature, physical phenomena and abstract ideas are not patentable subject matter.

A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.


International Protection of Industrial Property

Industrial property deals principally with the protection of inventions, marks (trademarks and service marks) and industrial designs, and the repression of unfair competition.

The three subjects first mentioned have certain features in common inasmuch as protection is granted for inventions, marks and industrial designs in the form of exclusive rights of exploitation. The repression of unfair competition is not concerned with exclusive rights, but is directed against acts of competition contrary to honest practices in industrial or commercial matters, for example, in relation to undisclosed information (trade secrets).


An invention is a novel idea which permits in practice the solution of a specific problem in the field of technology. Under most legislations concerning inventions, the idea, in order to be protected by law ("patentable"), must be new in the sense that it has not already been published or publicly used; it must be non-obvious ("involve an inventive step") in the sense that it would not have occurred to any specialist in the particular industrial field, had such a specialist been asked to find a solution to the particular problem; and it must be capable of industrial application in the sense that it can be industrially manufactured or used.

A patent is a document, issued by a government office, which describes the invention and creates a legal situation in which the patented invention can normally only be exploited (made, used, sold, imported) by, or with the authorization of, the patentee. The protection of inventions is limited in time (generally 20 years from the filing date of the application for the grant of a patent).

Unfair Competition

The repression of unfair competition is directed against acts or practices, in the course of trade or business, that are contrary to honest practices, including, in particular:

* acts which may cause confusion with the products or services, or the industrial or commercial activities, of an enterprise; * false allegations which may discredit the products or services, or the industrial or commercial activities, of an enterprise; * indications or allegations which may mislead the public, in particular as to the manufacturing process of a product or as to the quality, quantity or other characteristics of products or services; * acts in respect of unlawful acquisition, disclosure or use of trade secrets; * acts causing a dilution or other damage to the distinctive power of another's mark or taking undue advantage of the goodwill or reputation of another's enterprise.

Protection of industrial property is not an end in itself: it is a means to encourage creative activity, industrialization, investment and honest trade. All this is designed to contribute to more safety and comfort, less poverty and more beauty, in the lives of men.


So where does software really fit? Copyright, patent, both, neither???

What is missing in this is the base line or foundation of what software is. Leaving a lack of understanding and failure to establish the physics of abstraction creation and use.

And until that is done, there can be no arguement as to what anyone in such a field would or wouldn't have commonly done given a problem to solve using software.

You cannot specialize in something until you properly understand it.

It seems clear that the only thing understood about programming is to make it up as you go along as a matter of convience. Follow the money in doing this...make believe.

The results of doing this is the growing mess we have today, where lawyers are the only ones certain to win. follow the money?
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