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Torvalds comes out against EU patent directive
11/24/04 06:00 AM
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Three prominent open source software developers, including Linus Torvalds, the creator of Linux, have issued a statement urging the European Union Council to reject proposed legislation that would codify the practice of granting software patents in the E.U. In the statement, issued Tuesday, the three developers argued that the legislation, called the software patent directive, would be harmful to the European economy. They argue that copyright law rather than patent law is the best way to protect software innovations. [more]
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Steve_S
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Re: Torvalds comes out against EU patent directive
[re: News]
11/24/04 07:14 AM
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The "no software patent" mantra is common amongst those who have never done anything original. Copyright law only protects you from someone stealing your work with little or no modifications. Patent law protects algorithms and methods of accomplishing something. This is much more valueable than the actual code.
I don't understand the arguement for patenting a piece of machinery for the way it processes something, but excluding software processing. An invention is an invention no matter how you look at it. Software is not just like a piece of art (poem or a song). Though it does share elements of traditional copyright material, *some* software is unique enough to warrant process patent. I would agree that these cases should be reviewed carefully and limited in nature though.
Steve
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MrMe
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Re: Torvalds comes out against EU patent directive
[re: Steve_S]
11/24/04 07:54 AM
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Software is the written word. Copyright law is designed to protect the written word. Patent law was designed to protect tangible objects, not ideas. That is why you cannot patent an existing device for a new use. If you invent the stick, you can patent the stick. However, you cannot patent the same device as a curtain rod and then again as a law enforcement weapon. Imagine if we extend patents to the realm of the literature. We simply would not accept the idea of patenting the gangster novel, or the abused woman fighting for respect. For all the weeping and wailing and knashing of teeth, existing law has actually worked fairly well in protecting the hardwork of developers from the misappropriation of their ideas. To the extent that the law has failed a particular developer, the blame can be laid at the feet of judges and juries rather than the legal code.
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Re: Torvalds comes out against EU patent directive
[re: MrMe]
11/24/04 09:26 AM
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Patents don't really cover physical objects, but the ideas they implement. Selling exact copies of someone else's product would more likely be a matter of trademark infringement; copying the core concept behind that product would be a candidate for patent infringement. Software patents cover not particular pieces of software, but algorithms and methods that can be implemented in software.
You are right that it makes no sense to try to patent fictional character types, but on the other hand I don't see how that relates.
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Steve_S
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Re: Torvalds comes out against EU patent directive
[re: MrMe]
11/24/04 10:39 AM
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In reply to:
Software is the written word.
Unfortunately, so ignorance. While I do agree that most software falls under this category, there are plenty of exceptions. Patents are also designed to protect processes. These processes are often in the form of software.
In reply to:
Patent law was designed to protect tangible objects, not ideas.
Wrong. By definition: "The purpose of patent law is to encourage innovation, by granting inventors legal rights which permit them to protect their original inventions. "
Patent Law 101
In reply to:
If you invent the stick, you can patent the stick. However, you cannot patent the same device as a curtain rod and then again as a law enforcement weapon.
Sorry, poor example. By definition, a stick could never be patented. There's no sense in me rehashing what I already linked to. I'd suggest you read up on the "New", "Useful", and "Obvious" criteria for an invention. Further, a stick is found, not invented.
In reply to:
Imagine if we extend patents to the realm of the literature. We simply would not accept the idea of patenting the gangster novel, or the abused woman fighting for respect.
Sorry, by once again, you're demonstrating ignorance of patent law. By definition, literature does not meet the necessary invention criteria.
In reply to:
For all the weeping and wailing and knashing of teeth, existing law has actually worked fairly well in protecting the hardwork of developers from the misappropriation of their ideas.
Existing patent law has protected developers. Copyright law is basically worthless. Copyright law only protects people from stealing your product outright, but doesn't protect someone from reverse engineering it using the same processes, etc. To that end, I'd agree that most software is not patentable as it fails the "New" or "Obvious" criteria, if not both. However, some very specific software, usually a small subset of an application does meet all three criteria of a patentable invention.
Make no mistake, nobody is suggesting that all software should be granted a patent like all software is granted a copyright. This applies to a very small but unique percentage of software.
Steve
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jmincey
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Re: Torvalds comes out against EU patent directive
[re: Steve_S]
11/24/04 10:54 AM
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Steve, MrMe makes good points and I think you just quickly glossed over them. For example, his stick analogy was valid irrespective of whether the stick itself is patentable. But if this question of the stick is a sticking point for you, (sorry, couldn't resist), let's pick something else then which can be adapted for multiple uses -- this time something which IS patentable.
Whatever you start with, MrMe's point and general principle remains which is that implementations are one thing; ideas are another. Patenting ideas is very harmful to the very innovations it is meant to protect. I can think of no device more effective at sterilizing the fertile soil of innovation than patent law.
The whole idea of science is that it BUILDS on the ideas that have gone before and that scientists share knowledge. Patent law discourages this -- because of its misinterpretation and misapplication which MrMe details in his post above.
Maybe you don't fear living in a world in which one's genetic code could be patented by a corporation or that a university is constrained in its research efforts because a company threatens it with a patent infringement lawsuit, but I most certainly DO fear such a world.
Jeff Mincey
Edited by jmincey (11/24/04 11:01 AM)
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mdawson
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Re: Torvalds comes out against EU patent directive
[re: jmincey]
11/24/04 11:19 AM
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Good point jmincey. How many times has MacCentral posted stories about the very thing that you and MrMe mention? I cannot count the number of times I have seen articles here about some company suing another because they infringed a patent of an ‘idea’ that the previous had registered over a decade ago and has done nothing with since. Notice how these companies always wait until the defendant has made the ‘idea’ quite profitable before they strike.
What Steve_S is purporting is the equivalent of allowing someone to patent a theory. Imagine how quickly our advancements over the past century would slow to a crawl if people were permitted to patent and license such knowledge. As you stated:
“The whole idea of science is that it BUILDS on the ideas that have gone before and that scientists share knowledge. Patent law discourages this...â€
Everything in computer science is built upon algorithms just as the hard sciences are built upon theories and laws. If we start allowing people to patent them, nothing will ever move forward, or it will do so at a cost—a cost that you and I will ultimately have to pay. Can you imagine the money that could be squeezed out of people if someone were to come forward with a legitimate claim on the bubble sort, hashing, binary searching, or any other commonplace programming algorithm? All of these concepts were new and innovative at some point. Such a person would be in a position to collect handsomely from every person and developer that has ever used these common algorithms.
Copyright law is more than adequate for protecting software.
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Steve_S
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Re: Torvalds comes out against EU patent directive
[re: jmincey]
11/24/04 11:51 AM
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In reply to:
Steve, MrMe makes good points and I think you just quickly glossed over them. For example, his stick analogy was valid irrespective of whether the stick itself is patentable.
Sorry, I still don't follow. If you're going to make a point, you need to do it with a valid example, not something that's obviously missing the boat. Further, my point of illustrating that the stick was not patentable wasn't to say "ha ha, I'm right", it was to illustrate that it's actually very difficult to get a patent. I'm of course speaking of utility patents rather than design patents.
In reply to:
let's pick something else then which can be adapted for multiple uses -- this time something which IS patentable.
Okay, feel free. If it's truly patentable, I'm sure the discussion will change as the invention will likely deserve adequate protection.
In reply to:
which is that implementations are one thing; ideas are another.
Processes are more than just ideas. Why is it okay to patent a new chip design, but not a software program? What about a new machine? Is there anything about a machine that hasn't been done before? Is it not made of metal, etc? No, it's what the machine does and how it does it that's unique. Again, it's the process that is patented.
In reply to:
Patenting ideas is very harmful to the very innovations it is meant to protect. I can think of no device more effective at sterilizing the fertile soil of innovation than patent law.
I think your use of the word "ideas" to represent processes isn't quite correct. Aside from that, there's another side to your arguement. Why should a company spend millions of dollars to develop some new sophisticated process if their competitors can easily copy them afterwards for free? What's the incentive to innovate if you can be freely copied at will? Of course, I'm playing devils advocate here. I do understand that that many innovations and inventions are built off of something else. Of course, that doesn't mean there shouldn't be protection for intellectual property. Intellectual property happens to be significant business amongst tech firms and rightfully so.
In reply to:
Maybe you don't fear living in a world in which one's genetic code could be patented by a corporation or that a university is constrained in its research efforts because a company threatens it with a patent infringement lawsuit, but I most certainly DO fear such a world.
Based on your comments, I think there is a misunderstanding in terms of the things that are capable of being patented. You like MrMe are using completely invalid examples in an attempt to support your position. Yes, I would agree that patenting a stick or one's genetic code would be a bad thing. However, these items can't be patented, so that argument holds no water. Further, I don't think there's anything to prevent a University from treading on patents, so long as it doesn't try to make money on it in the process.
Your premise seems to be that no innovation can take place in the commercial world unless nothing is patented. That's not the case. Almost every product of significance contains patents from many different companies. That's what license fees are for. Look at Mpeg4 for example. How many companies own patents on that technology? Is innovation stifled because of this? No, not at all! This is why I don't buy into your "innovation is incompatible with patent law" position. Sorry, but that theory is proven wrong in almost every innovative product on the market. 
Steve
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Steve_S
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Re: Torvalds comes out against EU patent directive
[re: mdawson]
11/24/04 12:16 PM
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In reply to:
What Steve_S is purporting is the equivalent of allowing someone to patent a theory. Imagine how quickly our advancements over the past century would slow to a crawl if people were permitted to patent and license such knowledge. As you stated:
Do you really not understand that there are currently patents in software today? Do you really believe there is no innovation? Can you site one example where innovation was stifled due to patent law? Please, don't mistake refusal to pay license fees for lack of innovation.
In reply to:
Everything in computer science is built upon algorithms just as the hard sciences are built upon theories and laws.
Please the link in my second post in this thread which describes basically what it takes to get a patent. You can't patent algorithms that are already in use. You can't patent something that is deemed obvious, etc. It seems there is a lack of understanding here when it comes to patent law. Some here are in a panic without understanding how things work.
In reply to:
Can you imagine the money that could be squeezed out of people if someone were to come forward with a legitimate claim on the bubble sort, hashing, binary searching, or any other commonplace programming algorithm?
I'm sorry, I don't mean to be insulting, but these comments come from ignorance. It's impossible patent a bubble sort, quick sort, heap sort, binary searches, etc. So, imagine how silly your argument sounds. Basically, your criticizing patent law without understanding the first thing about it.
Further, the owner of a patent really has to enforce the patent almost immediately in order for it to be enforceable at all.
In reply to:
Copyright law is more than adequate for protecting software.
For the VAST majority of software, copyright is the only form of protection available. Copyright is not suitable in some cases which is why we have patent law. You may not have to like it, but that's the way it is. Patent law is a good thing in most cases.
Steve
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Tongo
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Re: Torvalds comes out against EU patent directive
[re: jmincey]
11/24/04 12:50 PM
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Indeed! And I think the issue of patents being granted for idea or invention is at stake, brought to light by the abstract nature of software and the subjective nature of "obvious" definitions.
I agree that patents are intended to protect the rights of inventors to benefit from their ideas - but at what cost? Shall the inventor be the only one to profit from their invention, or is profit more than how much money one can accumulate; is it so intangible a concept that society or science profit from an invention without taking money away from the inventor?
The stick is a weak example of software patent problems - unless.... A stick itself cannot be patented, certainly. But what if someone uses a stick to dig ants out of the ground and eat them (gotta love monkeys). Did a monkey "invent" this process and can it be granted a patent? If so, there can be no other intention of that patent than to prevent other monkeys from using that idea themselves without first paying tribute to the one monkey who was first to do something that is otherwise obvious.
Still, it's a weak correlation to software patents.
How about "E-mc2" as a literary form of text, an idea, or as an invention. Could Einstein have slapped a patent on that invention? A copyright? Is it an invention? If his formula was either copyrighted or patented then how would he benefit unless he used the law to suppress and/or tax all science that follows from it? Would not that benefit be only monetary? Can the patent practice be a benefit to the science of energy itself when scientists tip toe around legal landmines within concepts and ideas?
A concrete example: Currently, Microsoft has filed for a patent on the logical operator "ifnot" in their VB language. While anyone can refute a patent claim on addition and subtraction since those functions are obvious, only programmers (who use any language) can claim that "ifnot" is obvious. Will the USPO grant the "ifnot" patent, and if they do how would Microsoft like the check made out from anyone who writes a program that contains, "if this condition is not true then..." when it compiles as "ifnot" in their code? Could programmers avoid litigation if they change all instance of "ifnot" to "ifisnt" or is that only a means around a copyright, not a patent? It's silly, IMO.
I heard in this thread that a patent is to protect a "core concept" from being used by others than the inventor. I believe the same poster derides a, "mantra [that] is common amongst those who have never done anything original." I find that attitude very ignorant of the process of creativity in favor of property claims to abstracts with nor more intention than limiting profit to only those who own it. An idea alone isn't an invention, nor is is property; yet there are now commercials on television promoting the idea of getting rich for doing nothing more than coming up with an idea and placing a patent on it. Where's the actual benefits of invention?
I suppose Ford didn't get a patent on assembly line manufacturing of automobiles, otherwise there'd be no legal or economically viable way for Chevy to compete with their product designs. I suppose that Einstein or his contemporaries wouldn't be motivated to invent any theories unless money can be made from owning them. This perversion of the intention of patents is more than silly, it's sad. Money doesn't justify nor explain everything, nor is it the whole sum of wealth and prosperity, and it certainly doesn't define nor reward something as superior or original. It's just money, a tool of barter.
The idea of placing a patent on the human genome is a long shot since, for no other reason, it will be hard to claim that anyone actually invented the human genome. A method of studying or manipulating, indeed, can be patented. But the genome itself? I hope not. I'm more afraid of patents on the results of manipulation, custom genomes. Shall we allow people to place patents on health and raise barriers to it's access? How about food? Say someone invents a new strain of wheat (whether with genetic engineering or selective breeding) that can grow with little water and return massive food supplies.... With enough patents, on the gene and all processes to create it, and enforcement of said patents, copyrights, and associated distribution and use, the owner of that invention can rule the world.
I muse about the inventors of the device that combined basic machines so that water was lifted from the Nile over the banks and into the fields. Western civilization's first instance of technology. I can see other farmers paying the inventors to build one for them, but I don't think civilization could have progressed much had the inventors forced farmers pay them to use the concept itself.
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jmincey
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Re: Torvalds comes out against EU patent directive
[re: Steve_S]
11/24/04 12:59 PM
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In reply to:
Why should a company spend millions of dollars to develop some new sophisticated process if their competitors can easily copy them afterwards for free? What's the incentive to innovate if you can be freely copied at will?
You're kidding, right? Do you mean to suggest that were it not for patent law all innovation would cease and companies would no longer bother for lack of profit motive? Do you really want to make this case? I invite you to do so because I'd love to see how you develop your argument.
Meantime, I contend that even absent a patent, a company will have every motivation to continue to innovate because by doing so it will be first to market and far ahead of the competition. Even absent a patent, the economic incentive to innovate will remain -- not to mention the simple human desire to achieve. And consider the alternative. Suppose you are the CEO of a company and there is no patent law protection for the intellectual property of your employees. You have a choice -- you can innovate anyway or you can stand pat and follow one or two years behind the innovations of your competitors. Which would you prefer?
I think it's clear that innovation would continue, and I reject any argument to the contrary. Besides, even as "copying" goes, It's a nontrivial thing even to develop, manufacture, and implement the ideas of others. While R&D costs might be averted and the raw concept for a product is there, it's nonetheless still costly to build products from scratch -- only later to offer it after the innovators have had their day in the sun.
Also, don't minimize the contribution of those who copy others. Innovation is valuable to be sure, but to improve on and enhance the designs of others is likewise valuable to society.
In reply to:
The purpose of patent law is to encourage innovation, by granting inventors legal rights which permit them to protect their original inventions.
You can cite all the URLs you like; but I contend that such noble claims obfuscate the real purpose of patent law which is to protect profits -- even if at the expense of innovation.
As I see it, the choice comes down to this: We can create a society which through its customs and laws encourages the sharing of information and knowledge or we can create one which does the opposite -- hoards knowledge for the sake of immediate personal gains. Patent law is a policy which influences us in the latter direction. Now I gather you disagree, but to do so you must make the case that absent patent law human curiosity, scientific inquiry, thirst for knowledge, desire to achieve, etc., would promptly cease or be greatly reduced. You would also have to make the case that -- absent patent law -- companies would no longer have an economic incentive to out-innovate and get a head start on their competitors.
Steve, good luck on making this case.
In reply to:
Yes, I would agree that patenting a stick or one's genetic code would be a bad thing. However, these items can't be patented, so that argument holds no water.
I wouldn't be so quick to assert this as a fact. I can't supply a URL right now (because I'm at the office and theoretically getting work done), but for a number of years pharmaceutical firms have been making efforts to patent genetic code (and not only the technology which may make USE of such code), and a few may have succeeded in some instances. I suggest we would all do well not to be dismissive or cavalier of this possibility.
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I don't think there's anything to prevent a University from treading on patents, so long as it doesn't try to make money on it in the process.
Here I can tell you for a fact this not true. The one example which leaps to mind is a company in UTAH (the name of which escapes me) which sought and obtained a cease and desist order against a Pennsylavnia university for its genetic research. The university complied with this order -- even as the UTAH company has yet to do anything with this technology. And we are all the poorer for it.
The very idea that an institution of higher learning could be contrained in this way in its pursuit of knowledge for the betterment of humanity -- all for the sake of protecting short-term profits of one corporation -- is unconscionable. And yet this is what your beloved patent law has wrought.
Jeff Mincey
Edited by jmincey (11/24/04 02:53 PM)
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jmincey
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Re: Torvalds comes out against EU patent directive
[re: Tongo]
11/24/04 01:15 PM
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Tongo, you raise a lot of interesting and provocative questions -- thanks for your post. Here's another example for your list of patents: Today IBM holds the patent for reverse video -- which is to say light characters against a dark background in a CRT monitor. It's not merely IBM's specific implementation of reverse video but the concept itself which was granted a patent. Thank God IBM doesn't dare try to enforce its patent or to seek royalties from every monitor designer and manufacturer in the world.
Another point is that today's great innovation is tomorrow's commodity building block. The GUI objects today which we take for granted as generic -- such as a dialog box, a scroll bar, etc -- were once patentable things but today are considered fundamental. And this is an ever shifting definition. I can see how Aqua itself might be patentable, but the idea of a GUI window or drop-down menu? No. And yet this is not the strict interpretation of patent law which the American government (and perhaps the EU) is following.
Jeff Mincey
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