Subject: Re: Examples needed against Soft Patents
From: Ben Tilly <btilly@gmail.com>
Date: Tue, 28 Dec 2004 20:35:12 -0800

Disclaimer: I dislike software patents, but since I seem to have started
by arguing the case that they're not trivially wrong, I'll continue to
argue that.  Besides, Russell has said that he needs the experience. :-)

On Tue, 28 Dec 2004 22:04:38 -0500 (EST), Russell McOrmond
<russell@flora.ca> wrote:
> 
> On Tue, 28 Dec 2004, Ben Tilly wrote:
> 
> > There are patentable devices which can be realized either in hardware or
> > software.  If I have the patent on realizing it in hardware, should you
> > be allowed to circumvent me by implementing it in software?  You aren't
> > using a new technique, you're translating my technique to slightly
> > different "materials".
> 
>   I see this as an entirely different process.  One was a patent on the
> process by which nature was manipulated to manufacture a device, the other
> is policy added to an entirely different device (different manufacturing
> process - the hardware that executes the software).

It was not my goal to say that the reasoning above should be
convincing to you.  It was my goal to say that there are people who
find that reasoning convincing.  And they're not trivially wrong.

The goal of the patent system is to pay people a temporary monopoly
on their solution in return for them revealing it.  If the consequence of
their revealing their solution is that someone else can readily
implement it, then the temporary monopoly is not very effective, is it?

>   This is not circumventing some existing machine or manufacturing patent,
> but innovating-around any such patent using an entirely different process
> (possibly generic off-the-shelf devices plus policy to control it).
> Patents do not give you an exclusive right over every possible way of
> solving a given problem, but your solution -- and this is an entirely
> different solution.

I agree that it is an independently implemented solution.  But it is
clearly a *derived* solution and I don't see the innovation in
saying, "We don't need to put these physical transistors here, we'll
just write the same logic in software."  Particularly not with
decades of engineering experience in moving implementations
either way between silicon and bytes.

>   In the past the Canadian courts got this right: software neither adds to
> nor subtracts from the patentability of an invention.  If you take a
> patentable machine or manufacturing process that happens to require
> software to control the process then you still have a patentable
> manufacturing process.  If you have some existing hardware and the only
> difference is software, then all you have is the generic hardware and not
> a "new computer".

Why do people say, "they got it right" when they really mean,
"they agree with me", and say, "they got it wrong" when they
really mean, "they disagree with me"?

The Canadian courts decided that the above is how they
should interpret Canadian law.  To patent owners whose
patents are now easily circumvented, this decision is
unfortunate.  And certainly it is within the rights of Canada's
legislature to pass laws which would make those patent owners
far happier.

Furthermore there is nothing intrinsic in the reasoning for why we
have patents that suggests it should only apply to hardware.  The
fact that it does can be seen as just an accident of history.

>   When I load a piece of software into a computer it is not a new
> computer.  This is not a new machine, and no changes in the manipulation
> of nature to create the hardware existed -- it is the same computer, just
> with different policy.

When I assemble the pieces of a patented invention into their
final form, those pieces are often not altered.  Frequently you
can assemble, disassemble, then reassemble to your heart's
content and nothing changes but the arrangement of the
pieces.  Yet that arrangement carries legal weight that the
individual pieces, unassembled, do not.

Likewise in a computer with a piece of software, there has been
an internal physical rearrangement.  What is modified is the
orientation of which way certain parts are magnetized.  Sure,
the physical rearrangement is invisible to the naked eye, but
it is no less real for all that.  And there is nothing in the law
saying that you cannot patent a device merely because you
cannot see it - to the contrary many patents exist and have
been enforced on things that you cannot see!

>   To believe otherwise is to start with the conclusion (patent lawyers
> wanted a new type of monopoly) and then warp reality to try to come up
> with a path that leads to that conclusion.

I do not believe that I started or ended with the conclusion that
patent lawyers wanted a new type of monopoly.

It is true that the line of reasoning was intended to result in a
specific conclusion (that if you accept patents, there is no
obvious reason to say that you shouldn't have software
patents), but the intention has no bearing on whether the
reasoning is valid.

>   We don't have to re-learn biology each time humans have a new thought.
> You are the same person biologically at the end of reading this thread of
> messages than you were at the start ;-)

I also don't have to re-learn biology each time a human
moves his arm.  I'm not entirely sure of the point of your
analogy.

That said, you are _not_ exactly the same biologically at
the end of reading this thread of messages than you were
at the start.  And biologists are attempting to learn more
about the changes that happen.  They would like to learn
how, for instance, the act of your reading results in the
creation of memories that you can access about having
read.  If they could learn more about it, then they hope
that they could help people for whom the process has
broken down, such as Alzheimer's patients.

But I digress.

> > I'm not saying that I agree with this progression, but it is my
> > understanding that something like this actually happened.
> 
>   Special interest patent lawyers used bafflegab to confuse patent judges
> in special patent courts in the Unites States.  This confusion is then
> being aggressively exported worldwide.

I just want to be sure that I understand what you're saying.  You
mean that patent lawyers went to court and did their job - they
presented their clients' cases as convincingly as they could.  In
fact they presented the cases so convincingly that the judges
were convinced!

I'm not entirely sure what is supposed to be wrong with that.

Aren't lawyers supposed to do that?  If I hire a lawyer, that's what
I want him to do!  These ones seem to have done it well.
Shouldn't we be commending them?

>   That doesn't mean that there is "logic" behind the progression, just
> that some pretty interesting voodoo legal analysis is being used to
> circumvent important *economic* public policy.

And that is the critical point.

There is a rationale to patents.  We can argue until the cows
come home about whether patent law says that software
should be covered, or whether the omission is just a historical
accident.  But the underlying economic question is whether
patents do what they are supposed to do.  Or (in a related vein)
whether they will do what they are supposed to do if they are
applied to software.

That is not a simple question.  But it is critical.

> > But the line between "hardware" and "software" isn't very bright - you
> > can often move between doing something in hardware or doing it in
> > software and the boundary dividing them is rather fuzzy.  (What do you
> > call a system with software built into ROM?)
> 
>   It is only fuzzy because deliberately bad analogies were used to
> "explain"  hardware and software to laypersons.  For the broader legal
> community (outside the special interest patent legal community) it is
> appropriate to use analogies to their own profession.  There is a clear
> line between "a court house" (a type of "hardware" inside which policy is
> interpreted)  and "an act of parliament" (legal code, an information
> process similar to software).

If a physical court house could be designed to apply a certain
law without requiring a judge to be present, then this simple
legal analogy would be perfect.

Obviously a physical court house can't do that.  But it is possible
to literally turn software into hardware - take software and build a
custom piece of hardware that does exactly what that software
would do, in the exact same way, but will do nothing else.

Analogies can enlighten, but they can also mislead.  The
division between software and hardware is not nearly as
straightforward as the division between court houses and laws.
If it were then there could be no question about whether it is
legal to circumvent a patent on a physical device by building
an emulation of that device in software.  But there can be and
there is.

>   It is not that the line is unclear, but that the people who have been
> involved in the cases thus far had a special interest in encouraging
> confusion.

You speak as if there were only one set of lawyers present.
I've heard that there are generally at least two.  And at least
one set should have been present with the intention of trying
to make the dividing line as clear as possible.

If the dividing line was truly as obvious as you're making it
out to be in talking about court houses and acts of
parliament, then shouldn't they have found it easy to clear up
any attempt at confusion?

Cheers,
Ben