Subject: Re: Examples needed against Soft Patents
From: Seth Johnson <>
Date: Fri, 31 Dec 2004 04:56:49 -0500

Ben Tilly wrote:
> On Wed, 29 Dec 2004 22:27:26 -0500, Seth Johnson
> <> wrote:
> >
> > Russell McOrmond wrote:
> > >
> > >   It isn't about only applying to hardware, but the need to check for each
> > > subject matter class whether the first principles that justified patent
> > > policy still hold.
> > >
> > >   a) will it provide incentives for innovation, or stifle innovation.
> > >   b) is the embarrassment of a patent greater or lesser than the potential
> > > loss of an "invention" due to secrecy or other lack of disclosure.
> >
> >
> > This is analysis that we use in discussion with policymakers
> > until they can be convinced to return to more basic first
> > principles that used to be ordinary common sense.  In actual
> > fact, software is in a pure category that is appropriately simply
> > excluded from patentability at the outset, not according to
> > economic analyses or tests of novelty, etc.
> That is a strong claim.  Can you document it?
> More, can you prove that the categories would have been
> drawn like you want if software had existed historically?

I hardly doubt for a moment that pure categories would have not
been excluded.

Software (in all forms) is just a representation of pure

I will state that excluding software at an initial step, prior to
any tests of innovativeness, is exactly how patent law was
designed in the 1970's with the EPC.

In another email (or later in this one) I draw the picture: kings
could hardly reasonably grant individuals patents on pure

Before computing, people were simply not confused about excluding
pure abstraction.  It just makes sense.  It actually makes more
sense now, because computing is ubiquitous and everybody has the
ability to automate logical processes.  But some weird folks
think of computers as something still esoteric, so they still
imagine that certain special innovators can claim exclusive
rights to certain pure instruction sequences.

> [...]
> > Yes, but it's not the response that people are listening for.
> >
> > The issue is not "hard" vs. "soft" -- it's concrete vs. purely
> > abstract.
> >
> > It's important to understand the meaning of "pure" -- pure
> > abstractions are abstractions that hold regardless of empirical
> > instantiation.  Logic and math are both pure bodies of knowledge
> > that are utterly independent of empirical instantiation.
> [...]
> > A patentable process may represent certain physical law, but it's
> > the discovery of a new concrete way to use those physical laws
> > that's covered, not the physical laws themselves.
> >
> > The point about software, however, is about *pure* abstraction.
> >
> > How do you address this with respect to what Ben has asserted?
> > It is somewhat simple, once you think it through.
> >
> > Software is concrete in the wrong sense for what we're
> > considering here.  It is concrete like written words are
> > concrete, not like a natural causal process is concrete.
> > Software, or more precisely, a logical algorithm, is not concrete
> > in itself.  Logical algorithms just happen to be expressed in
> > concrete form, just as words on a page represent ideas that are
> > not concrete, in a concrete written form.  That is, software is a
> > representation of pure abstraction, just as written
> > representations of logical and mathematical principles are.
> This is a nice theory.  But I don't see it supported by history.

It's supported more than you might think.  For instance, I hold
that the manner in which patent practice has excluded certain
subject matters at the outset, reflects the fact that certain
things were understood to be intrinsically unbounded, inherently
the common good of mankind (logic, scientific laws, rationality,
etc. -- abstract, general and ideal things).

> For a random instance, US patent 1,647 issued in 1840 seems to
> be about something that's pretty abstract.  (That's the patent
> on Morse code.)

Yes, what's happened is, many things were patented that might
have been suspect to some folks at the time, but now are much
more plainly suspect.  The Morse code patent we now can see in
terms of symbolic processing -- that it's a set of symbols that
can be used like code to be automated.  But at the time, it
seemed much more like a particular technical solution to a

> [...]
> > This is why I think a simple policy solution for the problem of
> > software patents would be a simple requirement that patent
> > applications include a statement that the process claims do not
> > include abstract instructions provided to a generic logic device,
> > and if they do, those abstract instructions are not covered.
> > That would do the trick pretty handily.  This would make it
> > really easy for examiners, and would provide simple means for
> > correcting any mistakes that occur, by stating up front that
> > anything that can be shown to be instructions for a generic logic
> > device are not patentable.  That sort of policy would result in
> > us not having courts trying to draw distinctions without
> > sufficient principles expressed in the law, and feeling compelled
> > to address matters largely with respect to the interests of the
> > direct parties in a suit.
> I'd like that law.

Glad you like it.  I think it would be pretty cool, would work
really well.

> > > > I do not believe that I started or ended with the conclusion that
> > > > patent lawyers wanted a new type of monopoly.
> >
> > < SNIP >
> >
> > > > 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.
> >
> >
> > Ben, you have accepted a change whereby patent lawyers have
> > started asserting numerous misguided ideas that basically come
> > down to the notion that what's novel, nonobvious, etc. must be
> > patentable.  But in fact certain things were excluded at the
> > outset, regardless of how innovative they might be.  If we had
> > not excluded pure abstraction, patents would never have been
> > established in the first place.  A king giving one person an
> > exclusive right to a pure abstraction would have been such an
> > affront to plain reasonableness, that that would have been just
> > the most direct demonstration to all those privileged enough to
> > be engaged in any form of science, of that king's tyrannical
> > character.
> I'm amused at this characterization of history.
> FYI, both patent law and copyright law started with various
> kinds of nobility handing out various kinds of patents.  Many of
> these patents were on things that were quite abstract, like the
> right to publish a particular book for a period of time.

That's not abstract in a problematic way.  Everything has an
abstract side and a concrete side.  We can only countenance the
idea of a patent *because* the abstraction in claims to which we
grant patents is an abstraction *about a concrete process* -- it
has inherent limits (and non-ideality) in its concreteness.  That
is, the idea of hooking this concrete, empirical gizmo up to that
concrete whizbang.  Very general and abstract in a sense -- all
gizmo plus whizbang processes are covered -- but only gizmo plus
whizbang processes.  Both empirical and pure abstractions do not
afford the sort of limits that would imply that people can
accomplish things in different concrete ways.

A particular book is a particular expression.  Not a problem,
because people can express the same ideas in other ways, just not
copy what's original about how that book puts things.  We have a
similar way of allowing exclusivity that's not out of hand with
patents, simply by the way we exclude certain subject matters
prior to considering novelty, etc.

> As for whether giving patents on abstract things would be
> cause for rebellion, there's a lack of perspective.  This is a
> period of history where nobility could (and did) execute people
> just because they disagreed on, say, religion.  And many kings
> (and queens!) did.  Review why, for instance, bloody Mary got
> her nickname.
> Compared to that, a few unfair patents were small potatos.

I didn't say a king wouldn't have done it.  Just that it would be
pretty obviously tyrannical (and foolish).  So it's really not
something that's a part of the patent tradition.




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