You are wrong – if you cannot lose the attitude and the agenda in your quest to learn, I am telling you that you will not learn and I will not waste my time trying to teach you.

If you want to call the ground rules “meta-discussion”, fine. You simply are not prepared to discuss intelligently the topic at hand in the appropriate context. You will not understand what is truly useful to you and only welcome what you think is useful. Of course, you are welcome to persist in such ignorance, standing firmly with both feet in one world.

If you have any answers to the legal or technical questions I’ve asked, or any other information that might be useful to me, I’d welcome it.

“In what way is my understanding wrong?” – I cannot show you if you try to see through the software world view. You must walk before you run.

“Am I misinterpreting what he said?” – try to key on “…the software that they are using”. This encompasses more than the mere time – it encompasses the end result – the product.

“Can you point me to other material that suggests that legislators have seen the individual as equally important?” No, it is already in your grasp, but your blinders prevent you from seeing it – to use your own quote: It’s clear that it does do both” The problem comes in part from “I conclude…” when you draw your conclusions from the software perspective rather than the legal perspective. I cannot force you to understand the difference.

“Surely you can educate me” – No, this is something you need to open your own eyes and find.

“If you already have a full understanding, then technical experts have nothing to contribute to the discussion of the law. Are you saying that’s true?” – Now you are misconstruing what I said. I never said that I have full understanding or that I cannot learn from your point of view. I never have a full understanding, I can learn from your point of view and I do – What I dismiss are the factually empty LEGAL standings put forth in utter error. Been there, done that. My earlier exchanges were very enlightening to me – I do try to keep my mind open. The point, which you still fail to grasp, is that YOUR hubris and knowledge, based only in one world prevents you from your stated goals of understanding the legal view. When you started down the path of learning the technical side, did you believe that your hubris was so important? Why is it so important now?

“And I apologize that I wasn’t here in December and I can’t go back and read what you wrote then.” – I am sorry as well. I would love to have your opinion on the entire exchange, like I said, you strike me as someone very intelligent.

Noise,

You may laugh, but your quote from Jefferson is off point to a discussion of patentable subject matter – we are not discussing obviousness.

Now I get to laugh at the ever so careful breadcrumbs (sorry – inside joke).

If we’re going to quote Jefferson, let’s use one of my favorites as prominently displayed at the Patent Prospector:

“The fact is that one new idea leads to another, that to a third, and so on through a course of time until someone, with whom no one of these ideas was original, combines all together, and produces what is justly called a new invention.”
- Thomas Jefferson, Director of the 1st U.S. Patent Board –

That distinction, between the rights being the property and not the invention, makes some sense to me. However, I don’t understand in what sense it is “fully property”. Are you saying the laws that apply to all other kinds of property apply equally to intellectual property? For example, can you be charged with theft, or destruction of property, with regard to IP under the same laws that govern personal property or real estate? Or do you mean that it can be bought, sold, and inherited, like other property? Or something else?

Since I know so little about the evolution of Jefferson’s ideas, I have an honest question: can you consider a letter he wrote when he was 70 years old to be “his earlier views?” At what point did his views start to shift?

Perhaps both of you are missing some of the subtlety of Jefferson’s letter. The “property” of intellectual property is not “ideas”, nor even inventions. Rather, the property is “an exclusive right to the profits arising from them”. It is that exclusive right captured in our constitution that is the property right.

In this sense, Adam, when you speak of ideas as not property, you are technically correct, but off reference, and thus when you speak of intellectual property as not property you are incorrect. Intellectual property is property, fully so in the legal sense. Noise, while Jefferson’s stance towards patents in general did evolve over time, even his early letters supported the concept of intellectual property congruent to actual property.

“you are using his earlier views probably because they resonate with your beliefs. ”

I referenced the letter because I thought it explained what I was saying better than I could. It would be pretty silly to use a non-sequitur to explain myself.

“you recognize your ignorance of the law, but persist in putting forth “the foundational difference” between IP and physical property.”

Please correct me, then, instead of just calling me out for communicating things the way I understand them. In what way is my understanding wrong?

“You also have parsed your original argument down to *the effort itself*. Such an argument will be ignored”

I thought that’s what Alan was saying when he brought it up, and I was responding to his specific argument. “I explain that someone has spent time and effort developing the software that they are using and why should that person not be able to stop others simply copying it or using the concepts underlying it.” Am I misinterpreting what he said?

“At the most general level, we have IP law to benefit BOTH society as a whole AND the individual. Your statement to the contrary is simply and completely wrong.”

It’s clear that it does do both, and it’s wonderful when it can, but when I read e.g. the copyright clause of the Constitution, I conclude that the societal benefit was primary. But perhaps I shouldn’t have formed my opinion on such terse verbiage from the Framers. Can you point me to other material that suggests that legislators have seen the individual as equally important?

“for you to make such a statement that you can’t think of a single major software innovation since 1990 is simply incredulous. Try harder.”

I’ve given it my best. Surely you can educate me, since you have a foot in the tech world. What recent innovations have compared to the early ones I referenced?

“You seem to fail to realize that what myself, Gene and others already have IS that understanding of the intersection between the software, science and something else AND the law.”

If you already have a full understanding, then technical experts have nothing to contribute to the discussion of the law. Are you saying that’s true? Gene seems to disagree with you.

And I apologize that I wasn’t here in December and I can’t go back and read what you wrote then. I don’t know that there’s anything I can do to rectify that situation.

We are starting down a path I have traveled before. There is nothing at all wrong in your trying to educate yourself. But know this – educating yourself while holding an agenda will not work. You will be greatly disappointed, confused or both.

As an example, you quote (or link to) one of Jefferson’s letters. Such items must be held in context. Jefferson’s view towards patents evolved sharply during his life and you are using his earlier views probably because they resonate with your beliefs.

Further, you recognize your ignorance of the law, but persist in putting forth “the foundational difference” between IP and physical property. Again, you are seeing the question through the dogma of your beliefs. This type of “learning” is exactly what I ran into in December. I posted a simple challenge to this “open-minded” individual and received in reply over 17 pages and the net result was that the person could not “get it”, and I read his further postings on the tech blog which showed just how closed minded this person was, and how off the mark his understanding of IP law was. His only nterest in learning was in learning just enough to buttress his existing belief structure.

As you do seem to be intent on learning, I will continue to discuss. Keep in mind though, one foot in each world is infinitely better than both feet solidly in one world.

Let’s look at your new example, where you state “if you work for a year on a new mathematical theorem, you don’t get to control how it’s used or copied. If you spent hours and hours coming up with a new philosophical framework for thinking about the world, and tell someone about it, you don’t get to control who they tell it to in turn. The point is that it’s not the effort put into an action that determines whether the person gets exclusive rights to the results of the action, it’s the nature of the results themselves. So, saying that *the effort itself* put into writing software should give the writer exclusivity is not consistent with how we treat other actions. At the most general level, we have IP law to benefit society as a whole, not to give individuals just compensation for their work.”

A few fundamental errors in your new example:

A mathematical theorem is known to be non-functional material. However – the application of that theorem is definitely patentable. In that case, you DO control how the application of the theorem is used.

You also have parsed your original argument down to *the effort itself*. Such an argument will be ignored – I am treating the original thought – that the original result coming from the effort (in an applied sense of your theorem) is legally, ethically and any other way deserving of patent protection and IS consistent with how we treat other such actions. Your new example also runs to explicit things that are recognized as not patentable (laws of nature and such). Again, that is not what software is.

At the most general level, we have IP law to benefit BOTH society as a whole AND the individual. Your statement to the contrary is simply and completely wrong. When you start your learning from faulty premises, your end result will most likely end up a disaster.

You correctly point out that we both lack substantial “proof” of the contention that innovation was greater before or since 1990 computing. While you admit that “it is a weak claim anyway”, and probably not worth the effort to provide substantiation, as someone who professes to “know” the art, for you to make such a statement that you can’t think of a single major software innovation since 1990 is simply incredulous. Try harder.

I am further amazed that you think your hubris is very important. When you state that it’s important that most IP lawyers, judges and patent examiners don’t understand software to the extent that you do, but proceed to speak on legal issues in ignorance, this is simply illogical. When I speak of abdicating their standing, I speak as to legal arguments that are based without standing in the legal realm. Much as you prefer to have Gene speak a certain way in regards to “proofs”, you must remember that the legal arena has its own language requirements. When you speak of patents you are NOT in the technical realm, you are in the legal realm.

You respond to Gene as well along the dimension of hubris. You seem to fail to realize that what myself, Gene and others already have IS that understanding of the intersection between the software, science and something else AND the law. Your hubris is getting in the way of you understanding that foundational point.

The very fact that you feel compelled to use such language as “truth” in a software equals or does not equal math discussion shows that you have far to go. Additionally, it is NOT merely a pragmatic limitation of the court – it is a different world view. In order to learn that view – you must relinquish your dogmatic hold on the technical side. You cannot walk without lifting your foot and taking a step. I covered this in extreme detail in December. Remember – one foot in each world is better than both in one. I do not doubt your intelligence, don’t prove me wrong.

I tend to think those with the problem are academics, and then some in industry who really want to use the work of others for free as in a free-rider scenario. Perhaps I paint with too much of a broad brush, but it is hard to understand how computer science folks so freely admit that they think there is no such thing as software engineering and that the entire discipline does not exist. I think these folks are academics and, as you suggest, those who have not written practical software for a significant user base.

I have tried over and over again, and I am sure you will see this if you search IPWatchdog.com, to explain that courts will never believe software = math and we cannot start with that as a proposition that will lead anywhere.

A separate class of software protection that takes in part from copyright and in part from patents would be ideal. I would be inclined to give liberal protections without much of a hurdle for a limited time, and if you really want a patent then you get a much more rigorous review and it had better be an innovation. Even then, I think waiting in line for PTO review for 4 years or more for 17 (or so) years of exclusive protection defeats the entire purpose. What we ought to want is everyone to apply for a software patent with a more technically realistic number of years of protection and then it would be freely usable by anyone. If you required code or detailed schematics to be provided that would bolster open source, which really is what the patent system is intended to foster.

I have to write about that. Patent law has always been about fostering the ultimate “open source” movement, but has gone quite far afield.

-Gene

I think most software engineers would agree that at least this needs to change, no matter how they come down on software patents in an absolute sense. I for one, think that if we combined some good rules for determining true innovation, with your suggestion of a much shorter term limit (2 years isn’t a bad place to start), we could create a much better situation. For a number of (largely pragmatic) reasons, I would like to see legislation passed that explicitly excludes software from patents, but that doesn’t mean I’m unwilling to support steps towards more reasonable software patents, as long as they’re going to exist.

That may be, and it may be more useful to talk about it in those terms. If you say “software is not math,” then you make some of us want to talk about the truth of the matter, not the pragmatic limitations of the courts. If you would prefer that the software experts you interact with get over this barrier, as you suggest you do, you might want to ask us to accept that the US courts, under current US law, cannot affirm that software = math.

“The relevant field under the law, and I believe in real terms as well, is software engineering.”

Then perhaps there’s a confusion of terms here. My job title is “Software Engineer”, but I have two Computer Science degrees, one of them with a specialization in Software Engineering. Most of the software engineers I know would consider themselves computer scientists. Are you trying to single out academics in computer science fields, who in particular do not do software engineering research? Or are you just referring to people who haven’t written a lot of practical software with a significant user base?

You say: “I think there should be discussion and mutual education. And that’s the primary reason I’m reading this blog, and others like it. I’m trying to educate myself.”

If you are really interested in mutual education count me in. There is so much that can be accomplished through this. The real trouble with software patents is that they have in some cases been handed out like candy and without being enabled and without any true innovation. What I would love to do is create a test for determining when software should be patented, and in order to do that one needs to understand all the potential arguments against it so as to craft a tight proposal.

I have been noodling in my head and I think I have figured out under what circumstances software should be patented. I would love to get constructive feedback, but that just cannot happen when talking with those who say “the Supreme Court says you cannot patent mathematical equations, software is a mathematical equation, therefore software is not patentable.” That is intellectually dishonest or a blatant mischaracterization in order to achieve an agenda driven objective.

-Gene

You say: “do you think that maybe some experts in software or science or something else, who have tried to educate themselves somewhat on the law, could add a useful viewpoint to discussions on the intersection between the two?”

Absolutely! I have invited folks with altering view points to collaborate with me and they refuse. I have offered to educate them on the law so that they can understand when they are making a clearly erroneous statement, and then it never goes anywhere. No court will ever conclude that software = math, and they don’t want to accept that. If they would accept that 100% true statement and get past it we could get to the point where a discussion could be had relating to what offends them about software patents. I think many software patents are crap, but certainly not all. If true intellectual collaboration could be had a meaningful test for patentability could be crafted that would be an exceptional improvement. The problem is they don’t want any software patents, and refuse to accept that anyone could say software is not math, so it never gets past that point unless you are willing to live in the fantasy that software = math.

You said: “I said “everyone in the field”, which you have accurately described as computer scientists and mathematicians.”

Actually, that is not accurate. Insofar as patent law is concerned computer scientists and mathematicians are not the relevant “field.” The relevant field under the law, and I believe in real terms as well, is software engineering. Those who do not understand software, what it does, how it accomplishes it and the legal ramifications are computer scientists and mathematicians.

You say: “There are also many simple mathematical concepts that no one knows how to prove. I’m not sure what this will show.”

I agree. It will show nothing other than those who claim software can all be solved and proved are simply wrong, so it will dispense with the primary reason most say software is not patentable and get all objective observers to see that this line of argument is purely specious.

-Gene

Computers do mathematical proofs. The proofs, and the related concepts, all have to be converted to binary readable by the computer. Does that mean that the proofs are not math? Much of math is a process. Much of math can be used to drive a computer. It doesn’t seem like there’s a distinction to be found here.

“The true hubris being displayed is by those who think they can know nothing about law and tell others who are knowledgeable in both law and science that they know nothing.”

So true. Hopefully, we can ridicule those guys when they show up. However, do you think that maybe some experts in software or science or something else, who have tried to educate themselves somewhat on the law, could add a useful viewpoint to discussions on the intersection between the two?

“I NEVER said I know more than “everyone,” but I sure know more than computer scientists and mathematicians.”

I never said you did. I said “everyone in the field”, which you have accurately described as computer scientists and mathematicians.

“I can’t wait to hear the excuses for not being able to solve or prove a simple piece of code.”

There are also many simple mathematical concepts that no one knows how to prove. I’m not sure what this will show.

The foundational difference between IP and physical property is that physical property rights are about controlling a particular object (which always includes exclusivity), while IP rights are about controlling making new objects. This is why the analogy doesn’t hold. Giving someone a key to your house (or a hotel room) is excluding yourself from using the room as you would without them in it. If the person steals something, you no longer have it. If someone had a machine to make a copy of your house, and drop it down in the middle of Montana, it would be a completely different legal and philosophical question, and that would be analogous to patents. Thomas Jefferson tried to make this distinction clear in a letter once: http://www.usewisdom.com/sayings/patentsj.html

“You incorrectly align this with a time and effort towards a pronunciation example. The problem is, your example doesn’t fit what software is. Software is a tool.”

I’m sorry that my example was bad. Here’s another: if you work for a year on a new mathematical theorem, you don’t get to control how it’s used or copied. If you spent hours and hours coming up with a new philosophical framework for thinking about the world, and tell someone about it, you don’t get to control who they tell it to in turn. The point is that it’s not the effort put into an action that determines whether the person gets exclusive rights to the results of the action, it’s the nature of the results themselves. So, saying that *the effort itself* put into writing software should give the writer exclusivity is not consistent with how we treat other actions. At the most general level, we have IP law to benefit society as a whole, not to give individuals just compensation for their work.

“You also hand waive away the important growth and promotion of software with a gesture to volume only. Yet you provide no substantiation to your conclusive statements.”

Nor do you; we’re both just tossing out unsubstantiated claims. It’s a weak claim anyway, since it’d be near impossible to come up with a methodology for the comparison. However, when I think of Fred Brooks, E. F. Codd, Alan Kay, Dan Ingalls, John McCarthy, Larry Wall, Donald Knuth, Ken Thompson, Dennis Ritchie, Tim Berners-Lee, Doug Engelbart, the team at Xerox Parc, and all of the other greats of pre-1990 computing, I find it hard to believe that more innovation has occurred since then. In fact, I can’t think of a single major software innovation that has happened since then. The only close thing might be the rise of agile methodologies, or stochastic methods in AI, though both of those are really currents of thought, not particular innovations.

“Perhaps it is your hubris that is showing to think that your naiveté does not matter when you are discussing one of the most complicated arenas of law.”

I think it’s actually very important. I’m probably wrong about a lot of things related to the law. On the other hand, it’s also important that most IP lawyers, judges, and patent examiners don’t understand software to the extent that I do. However, unlike you, I don’t think they’ve abdicated their standing to speak by not being experts at everything. I think there should be discussion and mutual education. And that’s the primary reason I’m reading this blog, and others like it. I’m trying to educate myself.

You say: “And it’s pretty hard to make a case that more software engineering innovation happened after 1990 than before.”

I would love for you to present evidence. So often computer science folks make great statements as if we are to accept it as true. I think this is clearly incorrect and would love to know what you mean and see your proof.

You say: “Almost all modern computer languages must be translated from the human-readable code in which they are written to code the computer can understand.”

Exactly! Finally someone who understands! So many computer science people seem to ignore this reality. You translate into machine readable code for the computer to understand, which means you translate it into machine code that the computer follows step by step to produce the directed action/result. That is a process. The computer reads the instructions and acts accordingly. Without instructions the computer sits there collecting dust. So it is the software that causes the machine to become a specific purpose machine and the specific purpose is that purpose directed by the software. Additionally, the fact that it has to be translated into binary readable by the computer necessarily means the software code is not math, and only the last steps of converting commands and instructions is mathematical.

You say: “most of us are naive enough to think that you shouldn’t have to be a lawyer to understand law in a general way, since you clearly don’t have to be one to write it.”

Amen! If only that were true. Unfortunately, it is not and this is an exceptionally complicated area of law. The true hubris being displayed is by those who think they can know nothing about law and tell others who are knowledgeable in both law and science that they know nothing. That is the height of arrogance, particularly when they also ignore valid points and retreat to hyperbole and assaults when their position is exposed as weak, illogical and scientifically incorrect.

You say: “The hubris of saying your undergrad EE degree means you know more about software than everyone in the field tickles me to no end.”

There you go putting words in my mouth and twisting what I say in an intentionally dishonest way. I NEVER said I know more than “everyone,” but I sure know more than computer scientists and mathematicians. Anyone who does not understand that software is not the equivalent of math obviously knows very little about software, very little about math and has an agenda. You cannot solve software, you cannot reduce software and you cannot prove software. You can, however, write it and get it to cause a machine to function as you direct. This is a basic and fundamental concept and anyone who denies it is not seriously interested in an intellectual discussion.

Probably next week I will once and for all put all the software = math people in their place. If it is, then when I provide a stand alone section of code you all will be able to solve it or prove it, which we all know you cannot do. I can’t wait to hear the excuses for not being able to solve or prove a simple piece of code. I think I will use something like php, which is trivially easy, to prove the point.

-Gene