Re: Why are software patents wrong?

[Bruce Lewis]

threeseas <timrueAT@mindspringDOT.com> writes:

> Bruce Lewis wrote:
> > This has all been fully explained before.  Why don't you take a look
> > at
> > GOTTSCHALK v. BENSON, 409 U.S. 63 (1972) and tell us what part you have
> > questions about?
> > http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=409&page=63
> 
> 1972...... yeah right..
> 
> wasn't this like before the Y2K problem?.... oh, well yes it was!

I don't recall any changes to the U.S. constitution due to the Y2K
problem, nor any changes to patent law, nor any changes in Supreme Court
opinion on this matter.  I know there is controversy on this last part;
many think the Court was lying or mistaken in writing in their Diehr
opinion that they were using the same principles they used in the Benson
case.  Others think the Court was lying or mistaken that their Diehr
opinion would not "allow a competent draftsman to evade the recognized
limitations on the type of subject matter eligible for patent
protection."  I actually think the Supreme Court was right.

> Point being, there exist this problem along the lines of
> nearsightedness, shortsightdness...

They were using principles as old as the Constitution, and none of those
principles have changed since.

> this doesn't change the fact that there is a identifiable and
> appliable physics to abstraction creating and use.

One could just as easily say there is a physics to mathematics.  Axioms
can be viewed as particles that exert forces on each other and interact
in independently observable ways.  However, there are two reasons why
mathematics can't be patented.  Both have to do with the authority the
Constitution gives the Congress "To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries."

1. Experts agree that mathematians are not inventors, even though
   writing a mathematical proof may feel like inventing.

2. Exclusive rights do not promote the progress of mathematics.  Quite
   the contrary, mathematicians measure the worth of their theorems by
   how others use them, and would be shooting themselves in the foot to
   declare exclusive rights.

Not coincidentally, these are the same reasons why software is
inherently not patentable.

1. Algorithms are mathematical constructs.  As you use a specific
   language to construct a specific program, it may feel like inventing
   a machine, but the algorithm is an independent concept that is not
   invented, thus not patentable.  You can copyright the program,
   though.

2. The software industry progresses just fine without patent protection,
   so extending patent protection to software is not needed to promote
   progress.

People could already see that point 2 was true in 1972.  It was even
more obvious by 1981 that "this industry is growing by leaps and bounds
without it."  Since that time, we have even more abundant evidence that
every idea that significantly promotes progress is based on open
standards.  TCP/IP, SMTP, HTTP, HTML are prime examples.  Apple made
progress by copying ideas from Xerox.  Microsoft made progress by
copying ideas from Apple.  Do you think Apple would have licensed its
ideas to Microsoft?  Progress would have been stifled.

There you have it, the reason why the U.S. Supreme Court and other
reasonable people agree that our government has no authority to grant
patents on software.  Hopefully someday those scofflaws at the USPTO
will fall into line.

-- 
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