Linked by Thom Holwerda on Mon 11th Jul 2011 21:34 UTC, submitted by sb56637
Legal Blah blah Apple whines about a bunch of software patents again. Go cry in a corner, Jobs. Either find a strategy that counters the rise of Android, or just suck it up and be a man about it. Oh, HTC is the target this time around. Again. Whatever.
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RE[2]: Getting old
by BiPolar on Tue 12th Jul 2011 12:41 UTC in reply to "RE: Getting old"
BiPolar
Member since:
2007-07-06

why pharmaceutical molecules extracted from the bark of tropical trees are patentable


IMO, they should not, along with DNA sequences, but I digress.

Why are these patentable and software isn't, I haven't been able to figure it out.


One reasonable argument:

http://paulspontifications.blogspot.com/2011/04/patent-5893120-redu...

Reply Parent Score: 2

RE[3]: Getting old
by vodoomoth on Tue 12th Jul 2011 14:28 in reply to "RE[2]: Getting old"
vodoomoth Member since:
2010-03-30

I didn't read the entire linked content but I wholly agree that algorithms are nothing more than math formulas. I even taught program correctness using Hoare's logic.

However, and this is why I posted the previous examples of patentable things, especially the James Watt example, many patented "things", be they methods, appliances, or "items" (if I can put it that way), are just as trivial as in software. Note that some things aren't trivial by nature, and the light bulb is one example of genuine inventions that comes to mind.

Someone on this site once posted an example of a patent about linked lists... I agree, it is shocking! Someone else also gave this reason for software to not be patentable: "it's math and math is in the nature, it's not invented, it's only discovered"... not sure I would agree if I were Andrew Wiles. So is any non-totally-artificial molecule. In that respect, Aspartame is patentable, quinine isn't (more correctly, should have never been - if it ever was-). After all, quinine is found in the bark of a tropical tree.

Now if we could list all patented molecules, I'm sure we would find that many of them (e.g. ephedrine) can be found in the nature. So why are pharmaceutical companies patenting molecules left and right?

My argument for the patentability of software is that we shouldn't remove software from the realm of patents "just" because there are instances of granted software patents that are downright stupid patent granting, like the linked list one. That kind of quirks also exist in other fields, including ones where things are not really "invented" in the strictest sense, but "discovered". The changing of the size of gravel in concrete is one of those trivial things. Watt's moving the condenser away from the piston to avoid heat loss is another.

But in the end, I agree with Thom's argument I've read a few days ago that one can't patent ideas, only implementations and as such, software always being an implementation of (an) idea(s), it is already covered by copyright. That, despite ignoring the economic side of patents, is a true argument, which other args aren't to me.

Reply Parent Score: 3

On "math is in nature" and other things
by MollyC on Tue 12th Jul 2011 18:26 in reply to "RE[3]: Getting old"
MollyC Member since:
2006-07-04

I don't agree that math is in nature. Math, and numbers themselves, were invented by man. Numbers are abstract symbols, sometimes denoting amounts of something ("3 peanuts"), sometimes standing as symbols of themselves ("3"). And math itself is an abstract concept, sometimes applied to a concrete situation ("2 peanuts and 3 peanuts gives you 5 peanuts") and sometimes remaining purely in the abstract realm "2 + 3 = 5").

There's nothing in nature about "math". Sure, a water molecule consists of 2 hydrogen atoms and 1 oxygen atom, due to the way physics works, but it was man that assigned the symbol "2" to denote the amount of hydrogen atoms involved; nature couldn't care less about that. And it was man that created math and created equations that describe the laws of physics, but nature doesn't care about those equations. The laws of physics existed in nature before any intelligent race created equations to describe them.

So I disagree with the notion that "math is in nature", unless one goes down the road of "man is in nature, therefore anything man does is in nature, and man created math, therefore math is in nature - Q.E.D.", at which point every idea, thought, dream, or fantasy is in nature, including every invention and every invention idea, whether those inventions are made out of atoms or made out of bits.

However that doesn't rule out the "discovered" concept. Isaac Newton invented calculus, and I'd argue that calculus didn't "exist in nature", but one could argue that it did already exist in the "abstract", waiting to be "discovered" by a member of an intelligent species probing the abstract realm. But that could be said of any invention, be it software or physical.

------------------------------------
As for "ideas shouldn't be patented", I don't agree with that as a general principle (though I agree with it in particular instances). If the idea isn't obvious (and particularly, if the idea took a large amount of resources to come up with and develop), then why not?

And if we say, "only implementations (not ideas) can be protected (via patents, copyright, or other mechanism)", then how similar does implementation B have to be to the original implementation A in order to say that B infringes on A? Does changing the order of program instructions in B free it from infringment charges on A, even if changing the order of those instructions doesn't affect the "output" of the program? Does B's using a linked list whereas A used a binary tree free B from infringemnent charges on A? Or in the physical (non-software) world, if an invented device is made from brass and someone makes a copy of it using steel, is the copy freed from infringement charges because it's a different "implementation"?

At one extreme is "B infringes A only if B is an exact copy of A" and at the other extreme is "B infringes A if B implements the same idea as A, even if the implementation is totally different". I'd disagree with both of those extremes, generally speaking. I'd judge on a case-by-case basis whether B infringes on A, depending on the "idea" itself. Most software patented "ideas" describe, not just a general concept, but the implementation as well - not the exact source code, but an "algorithm" (that could be implemented by an infinite number of source codes), or more broadly, a fairly well-defined method, that could be implemented by numerous "algorithms", but those algorithms would all look quite similar to one another. The "idea" that is patented is typically the concept PLUS the described method (and sometimes the two are intertwined and unseparable). And if implementor B alters the "method" enough (that is, enough to be considered of some significance (not something like using a hash table rather than a tree)), then B can be free of infringement charges on A.

But I don't think these things are black-and-white. Apple does push the envelope with its "look-and-feel" claims.

Reply Parent Score: 2

RE[4]: Getting old
by JAlexoid on Tue 12th Jul 2011 22:01 in reply to "RE[3]: Getting old"
JAlexoid Member since:
2009-05-19

Problem is that software "inventions" staggeringly lack the inventive step.

I would agree to software patents under one* major provision - either patents or copyrights. Need be, the inventor could choose one or the other. But the patent should have the implementation source code in public domain.

* - And obviously enforcement of state of the art, inventive step(see why EPO said no to 1Click), public disclosure and prior art.

Reply Parent Score: 2