Subject: Re: patent trolls and X-licensors
From: "David H. Lynch Jr" <dhlii@comcast.net>
Date: Sun, 04 Jun 2006 13:09:06 -0400
Sun, 04 Jun 2006 13:09:06 -0400
Jamie Lokier wrote:
> simo wrote:
>   
>>> 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.
>>     
>
> The problem is that every instance of running such a process on a real
> computer is a physical process.
>
> So the attempts to define patents as valid for physical processes
> disallow patents like "add 1 to 2", and people just get patents which
> say "add 1 to 2 on a computer" instead which is a kind of physical
> process.
>
> The effect of that is patents on software algorithms, even when the
> patents only cover actually running the algorithms on a computer.
>
> And the doctrines of indirect infringement mean you get into trouble
> just for distributing the algorithm without running it...
>
> We had this problem in the UK during consultations to reconcile the
> conflicting desires of different factions over the EU proposals to
> "clarify" what is and is not patentable here.
>
> There were two fairly clear goals, and we were asked to provide a
> legal phrasing that would satisfy both goals.  The intention was to
> make anti-software patent people happy simultaneous with
> pro-industrial patent people.
>
> One goal was that software "as such" would not be patentable,
> including software running on a computer - e.g. spreadsheets, web
> sites etc.  The other goal was to make patentable machines to perform
> physical process where software was an integral part of making the
> process work - e.g. a machine performing a new technique for printing
> patterns on textiles, which needs a computer running a certain
> algorithm to achieve the new technique.
>
> We quickly found huge disagreement over what constituted software "as
> such" - with lawyers tending to consider a lot of things real
> inventions, and programmers considering many of the same things to be
> not inventions.  And this included lawyers who were trying to have a
> balanced point of view.
>
> For example, a method for encoding video signals to get better results
> over a copper wire or a radio link would typically be patentable
> according to lawyers, yet most programmers thought of that as pure
> mathematics, which happened to be embodied in a transcieving device.
>
> That's an obvious one: mobile phone manufacturers want to patent such
> things, while authors (and users) of free software like Xine and
> MythTV want them not patented.
>
> On one mailing list, we had discussions where that sort of thing might
> - in an ideal world - not be covered by patents when implemented as a
> software program (for example as in MythTV), but might be when the
> same algorithm was embodied in a silicon chip as a hard circuit.
>
> But that falls into problems of weird arbitrary lines as soon as you
> consider reconfigurable chips like FPGAs.
>
> And even more when you look at the future, where printing chips is
> likely to be almost as casual as printing words on paper.
>
> We also found it is not just things like codecs.  It quickly became
> apparent that algorithms used in most printer drivers would be
> patentable according to all the definitions being explored.
>
> Worse, algorithms used in network protocols were ambiguous, because a
> network has a physical element, and protocol algorithms _do_ affect
> physical things like time delays, bandwidths, power consumption,
> interference...
>
> Bizarre arbitrary lines, which nobody is happy with but which
> represent a compromise between different interests, might be the way
> it turns out.
>
> But we found that trying to produce legal language to define those
> arbitrary lines, resulted in language that was not intuitively
> understood by anyone, and where the interpretation of whether
> something was patentable differed hugely between different people.  We
> never did succeed in producing legal language that a majority of
> people were comfortable with.
>   

    I think your experiences are extremely interesting. I would argue
that they are rooted in the fact that software is NOT different.
    It is the failure of the law to make workable distinctions between
what is and what is not patentable that has brought us where we are today.
    And my argument is that the failure is not one of competing
interests, or of the inability of lawyers to construct working language,
or even of the differences in
    people point of view.

    Many people argue that software patents are wrong - because they do
not believe that patents can work for software.
    My argument is that they do not work because they are wrong. Because
humans are trying to bring the principles of the universe under control
of the law.
   
    Ideas are part of what connects us together as humans, and connects
us into the fabric of the universe (a part of my take on Martin Buber).
    Or integral to Jung's collective unconscious. Or ....
   


>   
>> 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.
>>     
>
> That's true.
>
> But you're not legally allowed to use those mathematical abstractions
> on a real computer, because using them on a real computer involves
> physical processes...
>
> And then, alas, you're not allowed to give people machine-readable
> mathematical abstractions either, because that's inducing _them_ to
> infringe which is indirect infringement on your part...
>
> You might think you can just write the law to specify that algorithms
> running on a _generic_ computer don't count as physical processes for
> the purpose of being patentable.
>
> But it's not as easy as it first seems to do that, because there are
> no "generic", isolated computers that are interesting.  Real computers
> have I/O and networking, and those have plenty of scope for argument
> about what constitutes a physical and industrial process.
>
> Take for example the patent on flashing coloured LEDs at high speed
> with a varying pattern to control the perceived colour...  I think
> that's software.  Someone else thinks it's a patentable invention in
> modern LED technology...  You might agree with me if it's just varying
> the duty cycle for RGB intensities.
>   
    Or maybe it is just exploiting the principles of physics.



> But what if the LED chip colour is a complex non-linear function of
> the power profile and temperature... and requires specific chemistry
> in the LED chips?  Assume it's non-trivial research to calibrate the
> colours and specify the best chemistry.  So then is the program which
> controls the colour non-patentable software when it runs on a generic
> computer with trivial I/O to the LED chips?  Is it still
> non-patentable software if the program is a hard-wired circuit instead
> of running on a CPU?  Is it the same if the hard-wired circuit was
> produced by a computer in a few milliseconds on a reconfigurable logic
> array?  Etc.
>   
    While patents that are "obvious" are typically supposed to be
excluded, conversely something is not automatically patentable because
it is non-obvious, or difficult.

    Regardless, my argument is not fundimentally different from yours -
except possibly as to my conclusion.

    Bringing an abstraction into the physical world does not make the
abstraction into something physical. Software is not different because
it is more abstract.
    It has just narrowed the distance between pure abstraction and
completely concrete. If you think you solve the software problem today,
something else will bite us tomorow.
    The problem is that patents are dealing with ideas - and ultimately
either you believe ideas are ownable or you do not. I not only beleive
they are not ownable, but that they are not ownable by there nature, and
that the growing failures of the patent system are a manifestation of
trying to make the impossible possible through force of law.




>
>
> While I strongly dislike software patents, I would have to answer
> yes to this question.
>
> Finding a new way to solve a problem with less resources is often very
> difficult, may involve considerable resources, often involves new
> understandings, and is surely the basis of a very large number of
> industrial patents.  It's not trivial.
>
> For example, when new methods of transmitting data over telephone
> lines were discovered, something which took intelligent people decades
> by the way, on the one hand it was all very mathematical, but on the
> other hand it certainly involved a lot of new understanding.
>   
    It involved a deeper understanding of physics. How much of the
process was a deeper understanding of the laws of nature.
    Patents are not supposed to be issued for things that are obvious.
What was inconceivable years or even months ago, may be obvious today.
    Fundimental knowledge is not supposed to be patentable. A new
understanding is not supposed to be patentable.
    What is obvious may vary based on the amount of knowledge you posses.
>   
>> 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?
>>     
>
> I see your point, but I think what you're saying there is that 5
> wheels etc. is too obvious and trivial to be patentable, not anything
> to do with abstraction.
>   
    But if you were the inventor of the car with 5 wheels etc. You would
be arguing that the fifth wheel provided additional stability or better
cornering,
Or provided some other advantage -  and there are likely some "non
obvious" advantages to most any otherwise obvious invention.

>   
>>>    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.
>>     
>
> It certainly is not.
>
> New methods for encoding data to transmit over wires and radio waves
> _do_ depend on our understanding of the physical processes involved,
> and our understanding is far from complete in those areas; even the
> fundamentals are not fully understood.
>
> Also, if you were to say that patentable industrial processes required
> a _new_ understanding of the fundamentals, well that would rule out
> almost everything including chemistry and pharmaceuticals, as it's
> nearly all derivable in principle from simulations of known physics...
>
> I think it's fair to say that a lot of research now can be done purely
> using mathematics and software.  For example new ways to encode video
> data, or new types of transistor design, clearly can be explored using
> a computer, even if you're simulating known types of physics during
> the research.
>
> Yet it's not true to say we develop no new understandings while doing
> that research.
>
>  You don't
>   
    Learning more about nature is not supposed to be patentable.
Presuming that the results of that knowledge are something one hopes is
patentable, it has to be non-obvious AFTER aquiring the knowledge. An
awful lot of the new encoding of communications has been the result of
being better able to visualize physical processes in 3 or more
dimensions., or a better understanding of the wave/particle nature of
light and electricity, or the way waves interfere. As amazing is it
might be without a deep understanding of those properties, with them it
may more analagous to a surfer knowing the right timing to catch a wave
for the longest ride.



>> 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.
>>     
>
> Computing without I/O isn't very interesting.
>
> In a real computer, those bits will effect some kind of physical I/O.
> At that point, it becomes difficult to say precisely what behaviours
> of the whole aggregate system constitute a physical industrial process
> or not.
>
> Consider a new process to make silicon chips, for example, that uses
> the same machines as were used before but using a surprisingly clever
> new set of data fed to the machines which nobody had even slightly
> thought of before.  Would that be a patentable invention?  A lot of
> people _do_ argue that such new configurations should be patentable,
> if they're sufficiently non-obvious, including people who are against
> software patents.
>
> Yet, how is that different, in principle, from a machine which writes
> to CDs using a new process, feeding a surprising new set of data to
> the CD writer?  Or (this is important) a machine which writes to paper
> using a new process, feeding a surprising new set of data to the printer?
>   
    Some of the most important things done with computers have the least
IO. Cryptography is intensely mathematical.
While obviously absent the input of messages and the output of encrypted
or decrypted results cryptography may be useless, it is also true the
the IO itself
is pretty insignificant as a part of the whole.
    What is "clever" ?  New is not supposed to automatically make
something patentable.

    I think we agree that software is not inherently different from
other arts that are presumed to be patentable. Though I would argue it
is not because software is less abstract,
    but because even in other arts where patents are accepted, the real
subject of the patent is abstract. Though I do not get your examples.
"surprisingly clever", "new process", and "surprising new set of  data" 
don't provide a basis for making a decision - even accepting the system
as it is.


>
> I don't think anyone here is saying abstraction can be patented.
>   
But my view is that the underlying problem is that the objective of
people acquiring patents is to patent abstraction.
That absent an important abstraction, any patent is just application of
knowledge in a way that would be obvious to most reasonably intelligent
people possesing that knowledge.


>   
>> 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 opinion.
>>     
>
> That's right, companies do twist patents to do that.
>
> So how do you propose to prevent that, while still allowing patents
> that affect physical processes?
>
> I mean, without just pointing and saying "that's wrong", but actually
> saying how you can distinguish between _useful_ software (running on a
> real computer with I/O), and patentable physical processes which have
> to use a computer to get the physical process to work.
>
> Many of us have tried to find a legal definition that would achieve
> that, and failed to find one that isn't full of loopholes.
>   
My argument is that the reason it can not be done is not because
computer software is not abstract, but because the useful element  of
any patent is the abstraction.
Focusing on the distinction between abstract and concrete is mostly an
attempt to demonstrate that to demonstrate that software is somehow
different.

Software is different to the extent that it is typically more abstract
than most other patentable arts - though many other areas are becoming
more and more abstract all the time.
But you are right that there is no bright line between the physical and
the abstract, and that is one of the reasons you can not successfully
create law to distinguish.
In the end the arguments against software patents either are nto
arguments or become arguments against all patents.
> -- Jamie
>   


-- 
Dave Lynch 					  	    DLA Systems
Software Development:  				         Embedded Linux
717.627.3770 	       dhlii@dlasys.net 	  http://www.dlasys.net
fax: 1.253.369.9244 			           Cell: 1.717.587.7774
Over 25 years' experience in platforms, languages, and technologies too numerous to
list.

"Any intelligent fool can make things bigger and more complex... It takes a touch of
genius - and a lot of courage to move in the opposite direction."
Albert Einstein



Jamie Lokier wrote:
simo wrote:
  
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.
    

The problem is that every instance of running such a process on a real
computer is a physical process.

So the attempts to define patents as valid for physical processes
disallow patents like "add 1 to 2", and people just get patents which
say "add 1 to 2 on a computer" instead which is a kind of physical
process.

The effect of that is patents on software algorithms, even when the
patents only cover actually running the algorithms on a computer.

And the doctrines of indirect infringement mean you get into trouble
just for distributing the algorithm without running it...

We had this problem in the UK during consultations to reconcile the
conflicting desires of different factions over the EU proposals to
"clarify" what is and is not patentable here.

There were two fairly clear goals, and we were asked to provide a
legal phrasing that would satisfy both goals.  The intention was to
make anti-software patent people happy simultaneous with
pro-industrial patent people.

One goal was that software "as such" would not be patentable,
including software running on a computer - e.g. spreadsheets, web
sites etc.  The other goal was to make patentable machines to perform
physical process where software was an integral part of making the
process work - e.g. a machine performing a new technique for printing
patterns on textiles, which needs a computer running a certain
algorithm to achieve the new technique.

We quickly found huge disagreement over what constituted software "as
such" - with lawyers tending to consider a lot of things real
inventions, and programmers considering many of the same things to be
not inventions.  And this included lawyers who were trying to have a
balanced point of view.

For example, a method for encoding video signals to get better results
over a copper wire or a radio link would typically be patentable
according to lawyers, yet most programmers thought of that as pure
mathematics, which happened to be embodied in a transcieving device.

That's an obvious one: mobile phone manufacturers want to patent such
things, while authors (and users) of free software like Xine and
MythTV want them not patented.

On one mailing list, we had discussions where that sort of thing might
- in an ideal world - not be covered by patents when implemented as a
software program (for example as in MythTV), but might be when the
same algorithm was embodied in a silicon chip as a hard circuit.

But that falls into problems of weird arbitrary lines as soon as you
consider reconfigurable chips like FPGAs.

And even more when you look at the future, where printing chips is
likely to be almost as casual as printing words on paper.

We also found it is not just things like codecs.  It quickly became
apparent that algorithms used in most printer drivers would be
patentable according to all the definitions being explored.

Worse, algorithms used in network protocols were ambiguous, because a
network has a physical element, and protocol algorithms _do_ affect
physical things like time delays, bandwidths, power consumption,
interference...

Bizarre arbitrary lines, which nobody is happy with but which
represent a compromise between different interests, might be the way
it turns out.

But we found that trying to produce legal language to define those
arbitrary lines, resulted in language that was not intuitively
understood by anyone, and where the interpretation of whether
something was patentable differed hugely between different people.  We
never did succeed in producing legal language that a majority of
people were comfortable with.
  

    I think your experiences are extremely interesting. I would argue that they are rooted in the fact that software is NOT different.
    It is the failure of the law to make workable distinctions between what is and what is not patentable that has brought us where we are today.
    And my argument is that the failure is not one of competing interests, or of the inability of lawyers to construct working language, or even of the differences in
    people point of view.

    Many people argue that software patents are wrong - because they do not believe that patents can work for software.
    My argument is that they do not work because they are wrong. Because humans are trying to bring the principles of the universe under control of the law.
   
    Ideas are part of what connects us together as humans, and connects us into the fabric of the universe (a part of my take on Martin Buber).
    Or integral to Jung's collective unconscious. Or ....
   


  
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.
    

That's true.

But you're not legally allowed to use those mathematical abstractions
on a real computer, because using them on a real computer involves
physical processes...

And then, alas, you're not allowed to give people machine-readable
mathematical abstractions either, because that's inducing _them_ to
infringe which is indirect infringement on your part...

You might think you can just write the law to specify that algorithms
running on a _generic_ computer don't count as physical processes for
the purpose of being patentable.

But it's not as easy as it first seems to do that, because there are
no "generic", isolated computers that are interesting.  Real computers
have I/O and networking, and those have plenty of scope for argument
about what constitutes a physical and industrial process.

Take for example the patent on flashing coloured LEDs at high speed
with a varying pattern to control the perceived colour...  I think
that's software.  Someone else thinks it's a patentable invention in
modern LED technology...  You might agree with me if it's just varying
the duty cycle for RGB intensities.
  
    Or maybe it is just exploiting the principles of physics.



But what if the LED chip colour is a complex non-linear function of
the power profile and temperature... and requires specific chemistry
in the LED chips?  Assume it's non-trivial research to calibrate the
colours and specify the best chemistry.  So then is the program which
controls the colour non-patentable software when it runs on a generic
computer with trivial I/O to the LED chips?  Is it still
non-patentable software if the program is a hard-wired circuit instead
of running on a CPU?  Is it the same if the hard-wired circuit was
produced by a computer in a few milliseconds on a reconfigurable logic
array?  Etc.
  
    While patents that are "obvious" are typically supposed to be excluded, conversely something is not automatically patentable because it is non-obvious, or difficult.

    Regardless, my argument is not fundimentally different from yours - except possibly as to my conclusion.

    Bringing an abstraction into the physical world does not make the abstraction into something physical. Software is not different because it is more abstract.
    It has just narrowed the distance between pure abstraction and completely concrete. If you think you solve the software problem today, something else will bite us tomorow.
    The problem is that patents are dealing with ideas - and ultimately either you believe ideas are ownable or you do not. I not only beleive they are not ownable, but that they are not ownable by there nature, and that the growing failures of the patent system are a manifestation of trying to make the impossible possible through force of law.






While I strongly dislike software patents, I would have to answer
yes to this question.

Finding a new way to solve a problem with less resources is often very
difficult, may involve considerable resources, often involves new
understandings, and is surely the basis of a very large number of
industrial patents.  It's not trivial.

For example, when new methods of transmitting data over telephone
lines were discovered, something which took intelligent people decades
by the way, on the one hand it was all very mathematical, but on the
other hand it certainly involved a lot of new understanding.
  
    It involved a deeper understanding of physics. How much of the process was a deeper understanding of the laws of nature.
    Patents are not supposed to be issued for things that are obvious. What was inconceivable years or even months ago, may be obvious today.
    Fundimental knowledge is not supposed to be patentable. A new understanding is not supposed to be patentable.
    What is obvious may vary based on the amount of knowledge you posses.
  
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?
    

I see your point, but I think what you're saying there is that 5
wheels etc. is too obvious and trivial to be patentable, not anything
to do with abstraction.
  
    But if you were the inventor of the car with 5 wheels etc. You would be arguing that the fifth wheel provided additional stability or better cornering,
Or provided some other advantage -  and there are likely some "non obvious" advantages to most any otherwise obvious invention.

  
   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.
    

It certainly is not.

New methods for encoding data to transmit over wires and radio waves
_do_ depend on our understanding of the physical processes involved,
and our understanding is far from complete in those areas; even the
fundamentals are not fully understood.

Also, if you were to say that patentable industrial processes required
a _new_ understanding of the fundamentals, well that would rule out
almost everything including chemistry and pharmaceuticals, as it's
nearly all derivable in principle from simulations of known physics...

I think it's fair to say that a lot of research now can be done purely
using mathematics and software.  For example new ways to encode video
data, or new types of transistor design, clearly can be explored using
a computer, even if you're simulating known types of physics during
the research.

Yet it's not true to say we develop no new understandings while doing
that research.

 You don't
  
    Learning more about nature is not supposed to be patentable. Presuming that the results of that knowledge are something one hopes is patentable, it has to be non-obvious AFTER aquiring the knowledge. An awful lot of the new encoding of communications has been the result of being better able to visualize physical processes in 3 or more dimensions., or a better understanding of the wave/particle nature of light and electricity, or the way waves interfere. As amazing is it might be without a deep understanding of those properties, with them it may more analagous to a surfer knowing the right timing to catch a wave for the longest ride.



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.
    

Computing without I/O isn't very interesting.

In a real computer, those bits will effect some kind of physical I/O.
At that point, it becomes difficult to say precisely what behaviours
of the whole aggregate system constitute a physical industrial process
or not.

Consider a new process to make silicon chips, for example, that uses
the same machines as were used before but using a surprisingly clever
new set of data fed to the machines which nobody had even slightly
thought of before.  Would that be a patentable invention?  A lot of
people _do_ argue that such new configurations should be patentable,
if they're sufficiently non-obvious, including people who are against
software patents.

Yet, how is that different, in principle, from a machine which writes
to CDs using a new process, feeding a surprising new set of data to
the CD writer?  Or (this is important) a machine which writes to paper
using a new process, feeding a surprising new set of data to the printer?
  
    Some of the most important things done with computers have the least IO. Cryptography is intensely mathematical.
While obviously absent the input of messages and the output of encrypted or decrypted results cryptography may be useless, it is also true the the IO itself
is pretty insignificant as a part of the whole.
    What is "clever" ?  New is not supposed to automatically make something patentable.

    I think we agree that software is not inherently different from other arts that are presumed to be patentable. Though I would argue it is not because software is less abstract,
    but because even in other arts where patents are accepted, the real subject of the patent is abstract. Though I do not get your examples. "surprisingly clever", "new process", and "surprising new set of  data"  don't provide a basis for making a decision - even accepting the system as it is.



I don't think anyone here is saying abstraction can be patented.
  
But my view is that the underlying problem is that the objective of people acquiring patents is to patent abstraction.
That absent an important abstraction, any patent is just application of knowledge in a way that would be obvious to most reasonably intelligent people possesing that knowledge.


  
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 opinion.
    

That's right, companies do twist patents to do that.

So how do you propose to prevent that, while still allowing patents
that affect physical processes?

I mean, without just pointing and saying "that's wrong", but actually
saying how you can distinguish between _useful_ software (running on a
real computer with I/O), and patentable physical processes which have
to use a computer to get the physical process to work.

Many of us have tried to find a legal definition that would achieve
that, and failed to find one that isn't full of loopholes.
  
My argument is that the reason it can not be done is not because computer software is not abstract, but because the useful element  of any patent is the abstraction.
Focusing on the distinction between abstract and concrete is mostly an attempt to demonstrate that to demonstrate that software is somehow different.

Software is different to the extent that it is typically more abstract than most other patentable arts - though many other areas are becoming more and more abstract all the time.
But you are right that there is no bright line between the physical and the abstract, and that is one of the reasons you can not successfully create law to distinguish.
In the end the arguments against software patents either are nto arguments or become arguments against all patents.
-- Jamie
  


-- 
Dave Lynch 					  	    DLA Systems
Software Development:  				         Embedded Linux
717.627.3770 	       dhlii@dlasys.net 	  http://www.dlasys.net
fax: 1.253.369.9244 			           Cell: 1.717.587.7774
Over 25 years' experience in platforms, languages, and technologies too numerous to list.

"Any intelligent fool can make things bigger and more complex... It takes a touch of genius - and a lot of courage to move in the opposite direction."
Albert Einstein