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Re: off topic again

Michael K. Edwards wrote:
> Patent is not copyright; you don't obtain a monopoly on describing
> your method, you obtain a monopoly on its commercial application.  No
> patent prohibits you from making a computer program implementing any
> algorithm you like; but if you sell it as a solution to the problem
> addressed in the patent, without authorization from the patent holder,
> you are infringing.  The same goes for selling its output, if that's
> covered by the patent -- compare against the enforcement of chemical
> process patents.
Thanks for this informative comment.  So I guess you would phrase the problem 
differently, but perhaps you agree on the existence of the problem.  As far 
as I can tell, (a) mathematical problems are being used as "problems" in the 
patent domain (apart from "solving a system of linear equations", a cipher is 
a mathematical transformation and the problem of finding one is a 
mathematical problem); (b) giving things away is considered just as bad as 
selling them; and (c) selling it as a solution for a different problem is 
considered just as much a violation as selling it as a solution for the same 
problem.  I really hope one or all of these is not true, but every time I 
look at something in software, they all seem to be true.

> So I think Arnoud's point is that, if a formula or other abstract idea
> were patentable without any indication of the result being achieved,
> then a textbook would be just as much an infringement of this
> counterfactual patent as a computer program or a machine that embodies
> it.  His "make, use, or sell" language is a little bit over-broad, but
> essentially accurate insofar as the maker may be liable for infringing
> use of the program by third parties even if he cannot be demonstrated
> to have made infringing use of it himself or to have profited from its
> sale.
Well, there you go.  You seem to have just said that I was right about (b) and 

> If people bought the textbook principally so they could copy down
> sections that amounted to an implementation of the patented invention,
> and proceeded to use them in an infringing way, then AIUI you could be
> liable for contributory infringement. 
I won't cry "First Amendment"; I'll note that a major part of the "patent 
bargain" is the requirement that patents be published, so that future work 
can be developed based on them!  Which makes this result rather contrary to 
the goals of the patent system!

>  applications of software techniques to practical problems
> are just as patentable when stated using "process" lingo as when using
> "machine" lingo, certainly now (per AT&T v. Excel) but AFAICT all
> along.  
Well, it's straightforward, anyway.  Any algorithm is a "process" by 
definition.  The problem is that it's a *mathematical* process.  If you don't 
have a prohibition on the patenting of mathematics -- and apparently we don't 
have one on the statute books in this country -- algorithms are obviously 
patentable.  The really nasty thing is that I can losslessly transform a 
large number of other mathematical constructs into algorithms.
"Practical problems", of course, is not a restriction at all, since a patent 
on using a process to do one thing apparently applies to using the exact same 
process to do anything else too.  :-P  (Although a new patent can be granted 
for the novel use, AFAICT that just means that a user has to license *both* 

Not that patentable mathematics is bad for me personally; in fact, I may make 
money off of it.  But it is patentable mathematics, and people shouldn't kid 
themselves that it's anything else.

> I am glad that I do not live in the dystopic fantasy world you
> describe, with incompetent judges obsessed by sophomoric deductions
> from Plato and easily led by the nose.
Well, you're quite right that incompetent judges aren't clever enough to do 
deductions from Plato.  Ignorance of logic is one of the reasons the law is 
such a mess.

>  Most judges are not software
> engineers but few are utter fools,
Well, they could just as well be crooks as fools.  I describe them as fools 
purely out of politeness.  The ADA case, in which the majority of the 
U.S.Supreme Court ruled that if you weren't too disabled to work, you weren't 
disabled -- thus rendering an entire section of the ADA meaningless and 
contravening the obvious intent of Congress -- was the point at which I knew 
that supposedly "well-qualified" judges often really are less competent at 
interpreting the law than your average high school student -- or else they're 
crooks.  The Federal Circuit has had such a biased record in favor of patent 
holders that it's really hard to respect them at all (contrast the case law 
before the consolidation).

Now there are obviously lots of thoughtful, honest, honorable judges who 
understand logic and statute interpretation.  However, if bad judges are in 
at the higher levels, it doesn't really matter.  Bound by higher court 
rulings and all that...

Judges are no worse on average than anyone else, of course.  But a fair 
percentage of the general population are utter fools on many subjects, so 
what do you expect?  (Of course almost everyone has *some* subjects on which 
they know what they're doing.)

> and to argue otherwise you're going 
> to need to adduce real evidence.
See above.  Oh, for a chaser: data in RAM is "fixed in a medium of 
expression", because the electricity *might* not be turned off.  Whether or 
not the electricity actually is likely to be turned off or not (in the 
context of the ruling, it was almost certainly going to be).  Actually, RAM 
is essentially "continually recopied" in the internal circuit; I know just 
enough EE to know that that's the actual facts. There's another one which can 
be reduced to absurdity easily.  According to the same logic, a pair of 
people repeating a phrase to each other alternately would fix the phrase in a 
medium of expression (because they might not stop), even if they had every 
intention of stopping.  

Look, judges have been fairly clueless about technical matters -- on any 
technology! -- most of the time.  The wise ones appoint special masters.  
Most of them don't.  Eventually, we may expect that the consensus of the 
specialists in a field may penetrate the world of the judges, but it seems to 
require generations.  The early rulings about telephones and telegraphs were 
all wrong, too, IIRC.

I still suspect that judges haven't noticed that the algorithms being patented 
are pure mathematics.  If they had, they would have had to face up to the 
question of whether mathematics should be patentable honestly.  Instead, they 
keep coming up with weasel-words.  But if a mathematical solution to a 
mathematical problem is patentable, then any sort of mathematics is 
patentable, and there's no getting around it.

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