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March 3, 2008
End Software Patents
fantasy propaganda site called End
Software Patents (ESP) seeks an end to what doesn't exist: software patents.
35 U.S.C. 101 Inventions patentable:
Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.
The recent CAFC ruling
Nuijten, an echo of the 1853 Supreme Court decision of
O'Reilly v. Morse, reiterated that signals per se are not patentable
Novel processes that may be embodied within a computer are patentable, though
they must be tied to a tangible medium. Such software is sometimes an emulation
of what may equivalently be accomplished in circuitry. But, just because a
process is automated, does not make it patentable.
[M]erely using a computer to automate a known process does not by itself
impart nonobviousness to the invention. See Dann v. Johnston, 425
U.S. 219, 227-30, 189 USPQ 257, 261 (1976); In re Venner, 262 F.2d
91, 95, 120 USPQ 193, 194 (CCPA 1958).
Apparently, ESP has concocted its own fantasy figures as to damage caused by
what doesn't exist; refer to the
IAM blog. If ESP were physicists, they would be complaining how antimatter
is gunking up the universe.
The source of ESP's funding is unstated. It should not come as a surprise to
find that large software companies are bankrolling ESP as a means to poison
public opinion, employing fallacious tripe posing as academic research to
convince the rubes.
a) I think the picture of Alred E. Neuman would have been an appropriate icon for this post (then again, the way things are going, you need to use that one a lot !!)
b) maybe we can get Troll Tracker to find out who the "real party of interest" is behind Ben Klemens' web site.
I believe some anti-"software patent" hacks (Bessen & Hunt) proposed the following "definition" of a "software patent":
((“software” in specification) OR (“computer” AND “program” in specification))
AND (utility patent excluding reissues)
ANDNOT (“chip” OR “semiconductor” OR “bus” OR “circuit” OR “circuitry” in title) ANDNOT
(“antigen” OR “antigenic” OR “chromatography” in specification)
Now try to run this by the CAFC...
God save this country from idiots!
Mr. Klemens is not an idiot. But some of his writing does appear to be inadequately researched and thought through.
He makes the novice error of identifying the teaching of the patent itself as the primary mechanism for the dissemination of the research it covers. Far more often, it is the other publications and collaboration that take place after patenting that promote that dissemination. But without the patent, researchers wouldn't feel comfortable publishing or collaborating.
He points to the indifference of doctors and programmers toward patents as evidence that they are not useful. But why should individual doctors and programmers care except for the modest prestige (very modest compared to publication in other venues) accorded inventorship? It's the corporate entities that benefit from exclusive rights that should not be indifferent.
Finally, and perhaps least significantly, his understanding of the history of the patent and copyright clause is somewhat muddled. Jefferson wasn't at the constitutional convention, although he participated vicariously through letter writing with Madison. Jefferson probably did believe in some version of moral rights since he effectively instituted the interference proceeding in deciding the competing claims of priority between the steamboat inventors.