Friday, November 14, 2008

Practising Law Institute - Patent Practice Center - Responding to Groklaw Regarding Bilski

Practising Law Institute - Patent Practice Center - Responding to Groklaw Regarding Bilski

I read the following paragraph (among others) in the linked article:



The other main objection I have to the Bilski decision is that we now have to live in a fantasy world where software is protected if and only if it is connected to hardware. So the hardware takes primary dominance and the software, which is what makes the device work and breathes life into the tangible piece. It is terribly disingenuous to force one to call software something other than what it is in order to get protection for it. This will just lead to manipulation and obscure reality. Why must we live in a world of make-believe?

My response...



Reading this post has frustrated me a little...


You *write* software...it is an instruction manual meant to be read by computers to enable them to perform some particular task (akin to "The Joy of HomeBrew", but in code).


When one *discovers* a new algorithm (you can't create something that's simply waiting to be found), it enters the world of human knowledge as a recorded idea. Ideas, in and of themselves, are not patentable. Ideas that lead to the development of physical devices that perform a specific function are also not patentable, but the machines may be.


That crossroads is where things have gone awry. Companies that sell products historically protected their new products via patents. Developing a new engine or widget requires physically creating something, and outlay of resources for physical stuff. Patents protect the companies investment in development of those wdgets.


In software development, newer companies said, "Hey, we're inventing stuff, and it took us hours and hours and lots of money to develop this", and reasoned that patent protection ought to be available. The fact that the resources spent were purely thought and man-hours (not tangible, physical object creation) was ignored.


Following this logic, one could argue that portions of movie scripts that represent a completely new plot element might be patentable. That is no less absurd than the idea that software that represents a newly-discovered algorithm might be patentable.


a+b=c is an algorithm, x*y=z is an algorithm. Does the fact that someone was the first to discover that a+b=c mean that they can enjoy a temporary monopoly on the process of addition? At its essence, that's what the argument over software patents is about.


Friday, August 15, 2008