Subject: Re: patent trolls and X-licensors
From: simo <>
Date: Sat, 03 Jun 2006 12:32:19 -0400

On Sat, 2006-06-03 at 08:39 -0700, Thomas Lord wrote:
> simo wrote:
> > In Europe we used to define Industrial Property and that comprised
> > patents, basically our proposal in the amendments for the CII directive
> > defined patents valid only for physical things under the natural forces
> > doctrine. A patent could be granted only if it teaches something new in
> > the manipulation of the physical forces of nature. This would exclude
> > any abstraction and mathematical processes, and of course software and
> > business methods.
> >
> >   
> That doesn't make any sense.

Wow, so fast ... I would think about it some more before sentencing this
way :-)

>    I don't think you should be trying to
> rescue the natural forces doctrine that way because there are good
> arguments that doing so displays metaphysical confusion.

What kind of metaphysical confusion?

> A computer, configured to run a particular program, *is* a
> physical process.   Each novel program is a new kind of
> process.

The specific instance of course runs on real hardware, I have never
denied it. But does it teach us something new on how matter behaves? No.

Showing how to ad 1 to 2 to 3 is a process of course.
But it is not a patentable process. In my opinion abstract process like
mathematical process or social process should not be patentable.

> Programs are not, in general, just abstract pure math separated
> from physical considerations.

On the contrary, in general they are.
There are subclasses of programs that need to deal with the fact that
generic computers have limits, that does not mean that the abstractions
contained in software become something less abstracted.
You don't make mathematics more physical just because you use it to
count the numbers of bananas in you bag.

>    You an see that by the way
> people's programs use checksums to guard against media
> failures.   You can see that by the way computational complexity
> is such a large issue in programming.   You can see that by the
> way that access patterns to memory are such a large issue in
> programming.

Of course I can see, but do you understand anything new in the physical
world when you find a new way to solve a problem with less resources?

You usually find a new mathematical abstraction that help you out to
deal with the limits imposed on you by the physical world. You do  not
find a new physical solution to overcome these problems.
Of course I see the fact that you researched this new abstractions
because you needed to deal with a physical limitation, but you have not
solved in any way that physical limitation, you just found a new
mathematical abstraction that let you deal with it.

So the point, for you, is to decide whether mathematical abstraction
should be patented. I am already past this point, I have already
considered the pros and cons of patenting abstractions, and I think that
granting patents on abstraction is not beneficial to the society as a
whole. I am also sure that research on this topic would not be
influenced by lack of patents, as it has not been for the 80% of the
history of research in the software field since the first computers were
On the contrary I think that allowing patents on abstraction can only
slow down the adoption and further research on abstraction (which in the
end means mathematics), and this is not beneficial to anyone, except the
few monopolist the think that being the only player in a small market is
better than being just a big player in a big market. To me they are just
short-sighted or blinded by their own greed.

> Every time a programmer invents a new program they're
> inventing a new class of machines which can be built out
> of a physical representation of the code for a program and
> a general purpose computer on which to run it.

Non sequitur.
If you can run a program on a generic machine you are not inventing any
new machine, it is self evident.

You can always build a car that have 5 wheels, 2 engines and transport 3
people, does it mean you have invented a new mean of transportation? A
new kind of wheel perhaps? A new kind of engine?

>    With each
> clever new program we learn something new about how
> these physical components can be configured to then operate
> in accordance to the rules and constraints of the physical
> forces of nature.

No, absolutely not. It is not _new_. It is all known. It is all prior
art from the point of view of manipulating forces of nature. You don't
change the way electrons flow through a transistor, or the way 2
transistors interface with each other, etc..., all you do is using the
already invented processor in one of the many ways the invention make it
possible. For how clever you can be, you end up just manipulating bits
in the only ways permitted by the cpu.

In the rare case that a software can really change a physical process
(let's suppose a specific way to stimulate a transistor with a specific
pattern of impulses changes the transistor normal physical behavior),
then in that specific case, the whole (hardware + software) would
probably be patentable as a process, that require both that specific
hardware combination and the actions performed by software. But what you
should end up patenting is the new physical process you found out, not
the software itself, nor the physical laws that regulate this process.
As you see we are dealing with hardware not software at this point.
In summary you don't patent abstractions, but previously unknown ways to
manipulate physical forces and matter to obtain a physical process.

This is my opinion, you may challenge the fact that in your opinion
abstraction can be patented. Fine by me, but then say so explicitly,
don't try to mask abstractions as physical processes. Al the companies,
that file software patents already do that, it is the way they used to
twist the patent offices procedures (with patent offices contribution of
course) so that they ended up being able to actually patent software,
against laws (in Europe) and against any uninterested common sense in my