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Re: Strawmen and Urban Legends

From: dt
Subject: Re: Strawmen and Urban Legends
Date: 27 Dec 2006 21:07:02 -0800
User-agent: G2/1.0

There is no such animal as "software patent"...

There are patents for processes, or method patents, in various
technical fields (business method patents are really a separate issue),
and today many processes can be controlled by some type of
microprocessor running some software code...
(BTW, the very first US Patent was also a process patent)

There are patents for devices, or apparatus patents, but today many
types of devices can be implemented using a microprocessor running
software code plus some peripherals.

A good example of this evolution would be Dudley's vocoder:
Vocoder ("voice coder") was invented (and patented) by Homer Dudley
of AT&T Bell Labs in early 30's. At the time it was a bunch of analog
circuitry probably taking half of the room.  And it was patented as
such: analog device.

Today the grandchildren of that first vocoder are digital software
implementations of mathematical algorithms running on tiny DSP chips in
each and every cell phone...

According to those anti-swpatent folks vocoder would be unpatentable
Well, what do you want from people who write software like a poem?
(but still don't understand what copyright is...)   :) wrote:
> There are three Patent types, Design, Utility, and Plant.
> You are correct that there is no "software patent" per se.  You cannot
> identify one by serial number or classification.  There is no
> bright-line demarcation as to what is a hardware, software, or firmware
> patent.  And since many systems (modems, A/D converters, DVD decoders,
> etc.) can be implemented in all three, or a combination of all three,
> it is ridiculous to try to classify some inventions as purely
> "hardware" or "software".  It simply can't be done in many cases.  And
> a competent Patent Attorney would be foolhardy to limit the embodiment
> of an invention to only hardware or only software.
> Under 35 USC 101, and as confirmed by the Federal Circuit, basically
> anything under the sun is patentable, except for natural phenonenon or
> mental processes.
> The Patent Office expanded this mental process exception, sua sponte,
> to include "mathematical algorithms".
> >From that, the Patent Office devised a rubrik whereby software was
> considered a computer implementation of a mathematical algorithm, and
> therefore was not Patentable.
> As the Federal Circuit correctly pointed out, however, the law does not
> support such a construct.
> However, that being said, the case law still favors "software"
> inventions that produce some result - the calculation of a share price,
> at the very least, it would seem.
> The Patent Office is examining most of these "non-traditional subject
> matter" applications with a fine tooth comb these days.  101 rejections
> are the norm.  Examiners are being provided with form paragraphs to
> reject such inventions (particularly business method Patents or other
> "nontraditional" subject matter).  A lot of these form paragraphs
> dredge up some pretty hoary old case law from the CCPA.  It is almost
> funnny, except that it can really add a lot of expense to Patent
> prosecution.
> So, if you want to get your "software" patent allowed, it is best not
> to couch it in terms of software alone.  Some end function in the real
> world should be claimed.  I believe the software patenting guidelines
> are posted on the USPTO website.  Of all the "non-traditional" subject
> matter, software is probably the easiest to Patent.
> I am sort of suprised that you are posting on this topic as though it
> was a recent controversy.  Here is an article I wrote OVER A DECADE AGO
> on the subject.  I mean, if the software industry hasn't been
> "destroyed" by Patents now, how much longer will it take?   Another
> decade?  --Bob.
> * * * *
> This article was originally published in June 26, 1995 edition of
> ComputerWorld Magazine as an OpEd piece.  I ended up writing and filing
> one of the earliest Internet Method of Doing Business Patents as a
> result of that exposure.  Recall at the time, many were predicting the
> ruin of the software business if software was patentable.
>             Now that the U.S. Patent & Trademark Office has given the
> green light for software-related patents, some software developers have
> gone ballistic.  In Internet postings and other forums, they argue that
> software patents will retard innovation, squash the small developer and
> generally bring an end of the American Way of Life as we know it.
>             Underlying this concern is that, with the apparent demise
> of "look and feel" copyright protection in the Lotus v. Borland case,
> it appears that patents may become the best way to protect software
> inventions.
>             I can understand why some software developers are upset.
> Copyright protection does have some certain advantages, such as being
> fairly inexpensive to obtain.  Moreover, a case of copyright
> infringement, requires proof that a defendant did some copying.
> Insulating your software design staff from outside code sources may
> protect you from a copyright suit.  Patents, on the other hand, require
> no such proof.  You can be sued for patent infringement on a patent
> you've never seen or heard of.
>             But the critics underestimate the advantages of patent
> protection for software.  Consider the following points:
>             Software Patents Were Issuing Anyway.  At least now the PTO
> doesn't have to pretend that they don't.  By facing this issue
> squarely, the Patent Office now has the opportunity to more
> consistently issue valid patents in software related fields.  By hiring
> computer science majors (a break from long-standing PTO tradition) and
> creating a dedicated Examining group equipped with "prior art" files
> from the software field, the PTO has a better chance of avoiding such
> embarrassments as the Compton Multimedia Encyclopedia patent.
>             Patents are Easier to Adjudicate.  The Patent field has
> over 200 years of Law and Rule making and court decisions behind it to
> aid in determining the scope and validity of claims.  Patent claims are
> printed on a patent for all to see and interpret.  In contrast, the
> "look and feel" copyright doctrine, apparently now defunct, was a new,
> judicially created doctrine with no precedential history.  Patent
> claims may be distinctly designed around.  "Look and feel" is more
> nebulous.  Whose look?  Whose feel?  Patent claim interpretation is
> much less dependent on which judge you get.
>             Other Fields Have Survived and Thrived.  Despite reports to
> the contrary, most technologies, including the computer arts, have
> survived and even thrived under our patent system.  In the technology
> business, it is taken for granted that any new product carries a risk
> of infringement of a patent or patents.  This risk can be minimized by
> performing a simple prior art search which may cost only a few hundred
> dollars.
>             Monopolizing the Software Field with Patents Won't Work.
> Proprietary formats and technologies are vigorously fought in the
> marketplace.  In most cases, less sophisticated competing technologies
> will prevail.  Consider BETA vrs. VHS, MacIntosh vrs. the IBM-PC, or
> Polaroid vrs. 35 mm.  In all three cases, less sophisticated
> non-proprietary technology has prevailed.  Any software developer who
> attempts to "force" the marketplace to buy his products through patent
> monopolies will eventually be history.  (Bill Gates are you listening?)
>             Patents Don't Always Favor the "Big Guy".  Consider
> Microsoft and Stakker.  The patent system may actually favor the small
> inventor.  Large Corporations may spend hundreds of thousands, if not
> millions litigating a patent suit.  A small company, if they can find
> the right attorney, may litigate such a suit on contingency for a
> fraction of that amount.  Moreover, a sole inventor has a much greater
> chance of eliciting jury sympathy when going up against the "big"
> corporation.  Consider Mr. Kerns and his intermittent windshield wiper
> patent.  If anything, large companies have more to fear from sole
> inventors than vice versa.
>             Regardless of whether you favor or oppose software patents,
> it appears as though they are here to stay.  Unfortunately, it is not
> possible to 'opt out' of the intellectual property system.  The best
> strategy is to establish your own portfolio and take reasonable
> precautions to prevent patent infringement.  If sued, your patents can
> be valuable weapons to force settlement of a suit.  Moreover, if you
> are a small, start-up company, you should count on any possible buy-out
> suitors being keenly interested in the contents of your patent
> portfolio
> * * *
> This posting is (c) 2007, Robert Platt Bell.  No, you may not copy this
> onto a pay website and charge people for it, or use it sell ad space.
> And yes, people have tried...

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