Subject: Re: Examples needed against Soft Patents
From: Russell McOrmond <>
Date: Thu, 30 Dec 2004 11:12:11 -0500 (EST)

  On 18 Dec 2004, Bernard Lang started this thread.  Will Bernard be
willing to summarize this conversation and pull out what he felt were the
most relevant arguments?

  Do you feel your original questions were answered well enough?  

 - summary of arguments
   This thread is all over the map ;-)

 - FLOSS projects killed by patents

   How many people used the XMMS distributed by RedHat when they removed 
   MP3 playing support due to patent claims?  How many just used other 
   software that infringes the patent?  Are these projects "killed" by not
   having a larger number of users using the software, or is only the use
   of this software by specific litigation targets "killed".

 - If Patents exist and are incompatible with FLOSS, how is FLOSS growing?

   Last one is called a massive amount of infringement  -- most believe 
   that all software including FLOSS infringes patents, and it is only a 
   matter of the patent owner deciding to use them against a project.
   I suspect that if the software field tried to honor all software 
   patents currently granted that there would be no new software, only new 

   This isn't an argument to get into with policy makers if they believe 
   that patent infringement = theft given this field is entirely made up
   of "thieves" of things that most often they don't even know exist.

   I would point these policy makers to some of the newer license 
   agreements, including the discussions around the new GPL, which 
   will likely contain termination clauses triggered by patent litigation.

Back to the existing thread ;-)

On Wed, 29 Dec 2004, Ben Tilly wrote:

> But this rhetoric is actually _correct_!

  I see where you are going, so I need a way to "innovate around" this ;-)

  You are suggesting I talk about a policy of promoting "the best
incentive" in a subject matter class, not discussing whether one specific
policy provides incentives or not.

  Patents are always a way to provide a monopoly to stop competition.  
Competition also provides incentives for innovation.  Given these two
potential incentives for innovation are contradictory (one was created to
reduce the other), policy makers must do economic analysis to find out
which of these provides the best incentives in a given subject matter.

  Policy makers must recognize that having too much patenting can stifle
innovation, otherwise they will fall prey to our actual political
opponents which are the maximalist ideologues who believe that "If some
exclusive rights are good, then more is better".

> >   Lets go back to first principles again as I believe this line of
> > thinking is distracting and not useful.  We are allowing the tail to wag
> > the dog by bringing up exceptions to seek to define a rule.
> Distracting, or merely inconvenient for you?

  Distracting.  That this distraction is inconvenient to me is a secondary 
issue ;-)

> Tell that to Transmeta.

  This is a matter of the tail wagging the dog, the exception changing the
rule.  We see the same thing in genetic engineering compared to advances
in traditional plant breeding techniques that don't carry with them as
strong exclusive rights.

  There are always going to be companies that want to gamble big by moving
into an area of excessive exclusive rights. In this non-competitive market
you have a "winner take all" situation where there will be few survivors,
but considerable rewards for the eventual sole surviver.  While this type
of extreme market monopoly is bad for the economy generally, it is great
for that sole surviver.

> For another example, I've heard that cellphone companies find
> themselves making very non-trivial decisions about how much
> they should be doing in hardware and how much in software.
> They can implement it either way, and the economic tradeoffs
> are not obvious.  Thus the two options exist for them in the same
> economic context.

  So?  There are often multiple techniques to achieve the same goals.  If
you look closely at agriculture you will see that there are techniques
where the same "go from A to B" can either be patented through genetic
engineering techniques or only offered plant breeding rights when
accomplished through traditional (in the opinion of many less risky for our
ecology and economy)  techniques.

  Implementing a "from A to B" solution in hardware and in software are
two different solutions.  I'm not arguing that current players in a
marketplace want to stop competition by having exclusive rights that span
both solution sets, but I will argue the economic policy case of whether
this is helpful or harmful to innovation.

  I also suspect that if adequate useful, novel and unobvious tests were
done for the hardware implementation that it is unlikely it would be a
good quality patent.  You indicate that you disagree, so we'll have to
just leave that one at an agree to disagree.

> I guarantee you that if you try to draw a lot of fine lines between
> subject matter classes, patent lawyers will try hard to get their
> products classified in the most advantageous subject matter
> class, and you'll get legal chaos.  Nobody likes to be the one
> who wrote a law that resulted in legal chaos.

  There is already legal chaos far beyond what you describe - what else
can you call a subject matter class with less than 40% good quality
patents, and with people skilled in the art working in a minefield where
their work can be squashed at any point by a competitor with a bad quality
patent?  Only those with sufficient existing legal and monitory resources
can survive, killing many upstart competitors.

  Patent agents will always try to warp the law so that they can file for
patents.  It is the job of the government to do the economic analysis to
find subject matter classes where patents would be harmful, and do
strong examinations to be able to tell the difference between
classifications regardless of what patent agents file.

> No, I'm stating as a fact something that is a fact.  What is up for
> debate is what significance to give to this fact.

  We are talking about patentable hardware, and you are talking about 
something that can be created by an existing 4GL design system.

  Please explain how something that is already largely automated in
software can be considered "useful, novel and unobvious".  The important
question is the last one -- is it unobvious, or is it something that many
skilled in the art, using the same design tools, and given the same
problem could not have come up with as well.

> To me this implies a level of equivalence between that software
> and that hardware.  To you it doesn't.

  Correct - it doesn't imply anything to me.  If it did then I would also
believe there are no differences between any of the categories of science
(physical sciences such as physics, chemistry, biology and social sciences
like law, politics, psychology) given all of them can and are modeled in

  When you say that the software model is useful you aren't convincing me
of the equivalence of hardware emulated in software, but of the unique
nature of software which requires that it get adequately analyzed
independent of anything we knew before it.

  This reminds me of the discussions with policy makers about TCP/IP and
the Internet.  There is a suggestion that since TCP/IP can carry broadcast
traffic that it should be entirely regulated like broadcast.  There are
others that say that since it can carry VOiP that it should be regulated
like a telecom.  There are also citizen-to-citizen features facilitated by
the end-to-end design that makes the Internet unlike any previous medium
of communication.
  In my mind the fact that there is such considerable overlap means that
this medium should receive its own unique regulation, and not be
considered equivalent to anything that came before it.

> But whether or not you consider that the relationship bears an
> equivalence, the work to design one is exactly the same as the work to
> design the other.

  This I can agree with.  I am suggesting that this does not suggest
either that hardware and software are equivalent, or that the existence of
patents in one class should automatically suggest patenting in the other.

  The easier it is to create new hardware the more strict we should be of
the useful,novel,unobvious tests.  As the capabilities of those "skilled
in the art" increases, so should the bar that needs to be crossed in order
to receive a patent.

  The type of hardware that was hard to do in the past and received a
patent in that historical economic context shouldn't necessarily be granted
a patent today in an entirely different economic context.

> >   You are saying that there is a difference between a process carried out
> > by a human and a machine, but no difference between a process carried out
> > by a machine and by policy (information process, software).
> Yes, and that difference is that we can manufacture machines
> but we can't manufacture people.

  This is an issue of technology for you then, not an issue of economic
public policy where that policy must adapt to meet ever-changing economic
circumstances.  When cloning and other genetic engineering techniques
advance enough you believe there should be patents on manufactured people?  
Can you now tell me the difference between exclusive property rights on
this patented human and slavery of the past?

> Since we can't, I'm willing to ignore that line as a theoretical
> question for future generations.

  I am not willing to ignore this question. Current patent laws were
created at a time when the influence of software was about as relevant as
the influence of "manufactured humans" are today, and yet this excessively
outdated law is being used to grant patents on software.

  If you believe that we should wait to worry about the policy when we can
manufacture people and then do analysis, then you are effectively agreeing
with me that we should be doing similar analysis on this new thing called

  In the case of software *WE ARE THE FUTURE GENERATION* who were left
with this question.

> Consider the following sequence of comparisons.

  It didn't get us anywhere.  You can have a patent on a machine which can
read policy (punch cards in a programmable loom) without needing to have a
patent on the policy.

> Note that in the actual machine that the punchcards were physical
> devices which again conceivably could be patented.  (I do not know
> whether any were.)

  It would be interesting to have tested this assumption, but I believe the
answer would be no.  This is back to the logic that a machine with one
punch card in it would be considered a *different* machine than an
otherwise identical machine with a different punch card in it.  In this
case the inventor of the machine would have needed to have a claim for
each combination that could exist on the punch card in order to have a
patent on each "new machine".

  Instead he had a patent on a programmable machine, independent of the 
different ways in which it could be programmed.

> >   I suspect you would have a hard time getting a patent on this 4GL
> > generated hardware as well given it is unlikely to be considered useful,
> > novel and unobvious.
> I believe that you're wrong.  More specifically, I believe that there
> are a large number of patents on hardware that was designed
> this way.

  There are many patents on a lot of ludicrous things.  Does the existence
of the patent on playing fetch with a dog, or the patent on entertaining a
cat with the "invisible light" from a laser pointer prove anything to you?  
All this proves to me is that current patent systems are seriously broken
and that society has to currently pay the cost externalities of the legal
chaos created by this.

Note: If the light is "invisible" to the cat, the cat can't possibly be 
exercised by it, so it fits into the same category of non-useful as a 
perpetual motion machine would.

> But note here that the lawyers who were misbehaving were misbehaving in
> their client's interest.  I consider that significant.

  Strongly Agreed.  The CRIA lawyers were serving the longer-term
interests of their clients which was not to win the P2P case in front of
the federal court of Canada, but to provide "evidence" to convince
parliament to make radical changes to the law that would favor them in the
future.  So far this behavior is being well rewarded by parliament, but 
hopefully we will be able to change that.

 Russell McOrmond, Internet Consultant: <> 
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