Subject: Re: Examples needed against Soft Patents
From: Ben Tilly <>
Date: Fri, 31 Dec 2004 16:04:00 -0800

On Fri, 31 Dec 2004 04:56:49 -0500, Seth Johnson
<> wrote:
> Ben Tilly wrote:
> > > 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.

You may hardly doubt it, but I do.  And so from where I sit this
line of thinking looks entirely like wishful thinking.  Unless you
can come up with some good historical documentation you're
not going to convince me just by repeating the assertion

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

As I pointed out then, kings did a lot of things that were less
reasonable than that, and got away with it.

> > 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).

I believe that those things were understood to not be humanly
invented.  By contrast a useful piece of software is humanly
invented.  The distinction is subtle, and a correct answer will be
hard to pull from the historical debate because people tend to
not clarify questions that they didn't think of.

> > 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
> problem.

Do you have documentation that people at the time questioned
whether Morse Code should be patentable?