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An Argument Against Software Patents 166

clndnng writes "Roughly 90% of web content consists of discussions of software patents, so it's a little surprising that Ben Klemens has written what may be the first dead-trees book analyzing their validity. It has a lot of ground to cover: you could approach the topic from the perspective of the geeks, the lawyers, the economists, or the businessmen. Klemens is equal-opportunity, addressing every perspective." Read the rest of the review.
Math You Can't Use: Patents, Copyright and Software
author Ben Klemens
pages
publisher Brookings Instituion Press
rating 9/10
reviewer
ISBN 0-8157-4942-2
summary Explains why patents don't make sense for software


The first question you are probably asking yourself is whether this book says anything that you haven't already read on Slashdot's pages. Barring any omniscient readers, the answer is probably yes, because the book covers so many different angles. You might already know what he will say about the Church-Turing Thesis, but you probably don't know the law of scènes à faire or contributory infringement. Slashdot chestnuts like Amazon.com's one-click patent and the SCO v IBM case make only passing appearances, leaving room for more interesting examples about Garbage Pail Kids and Banana Protective Devices.

Chapter two of the book gives a quick-and-dirty overview of the economic motivations for patent law. I should tell you that Ben Klemens and I were both students at Caltech's PhD program for Social Sciences, so I was half expecting him to whip out the infinite sequences of integrals over a Riemann manifold here. But he either didn't think the Greek relevant or chose to spare us mere mortals, because he keeps the theory pretty simple: patents are supposed to maximize the size of the market. If nobody is providing a good, patents should induce somebody to provide, but if many people are providing the good, then a good patent regime shouldn't diminish that number of providers to one.

You can see where this is going: patents on software are often not necessary to induce code-writing, and when they do exist they seriously diminish what could have been a crowded market. He ties this to finding the optimal breadth of a patent, because a too-broad patent gives the owner a cheap monopoly over a range that could have held a large number of competitors.

The next chapter is the computer science chapter. He goes into detail about how we go from transistors to instruction sets, which turns out to be important in the next chapter when patent examiners try to draw a line between the two. He also talks about how one could write up a symbol table to translate any given program into lambda calculus expressions, which are pure math by any definition of the term. If pure math isn't patentable, and a program can be translated into a pure mathematical expression, then where does the program get off being patentable?

Chapter four shows how U.S. law went from disallowing software patents to letting through patents on anything sort of techy-sounding. The first alibi by the courts is that code may be pure math, but a machine on which is programmed pure math is a physical device, just like a toaster. Klemens tries to address this via the discussion above about how the transistors are soldered on at the factory, but the programs coded onto them are just states on a state machine. He brings up the breadth problem above: a patent for an algorithm on any general-purpose computer is a patent of huge breadth.

The second alibi by the courts is that the application of an equation to a useful purpose is distinct from the equation itself. As tenuous as such a distinction is, it hasn't held, so there are now patents on the books for math applied to useful purposes like a "Method for performing complex fast Fourier transforms," a "Method of efficient gradient computation," and a "Cosine algorithm for relatively small angles."

That's the thrust of the theory that Klemens covers. Most of the rest of the book shows how software patents in the real world create problems. He cites interviews with venture capitalists by a University of Texas researcher in which they say that they just expect to be violating patents left and right in the normal course of business. He cites another set of researchers who surveyed technologists in a variety of fields, and found that companies in most fields mostly patent in order to protect their inventions, while computing companies are most likely to patent so they can game the system.

Klemens seems to be downplaying the role of open source in all of this. In Chapter 6, he points out that the U.S. software market is evenly split between software companies (32.6%), consultants (36.4%), and in-house software (31.0%). That is, most software isn't written by software companies, and some of that not-software-company software is OSS. It's the decentralization, not the openness, that matters. Patents have never been applied to a decentralized industry before, and they don't work there because independent invention is not a valid defense against claims of patent infringement, and independent invention is inevitable in such a decentralized industry.

Finally, the book covers copyright, which makes sense because if patents really are going to be thrown out, then coders will be relying on copyright more. For example, the GPL is based on copyright protection. The recommendation here is that copyright be aimed at detecting plagiarism anywhere along the line, so if you cut and paste my FORTRAN code and run it through f2c, your C code is still infringing my copyrights. He points out that software is uniquely well-suited to enforcing copyright all along the development process, because coders have backups and RCS repositories that poets don't keep.

Klemens's anti-software patent position happens to be the position I believed when I started reading, so I can't say that he changed my mind. But he did point out many arguments, stories, and facts that I hadn't known (or had misheard) beforehand.

Klemens covers a lot of ground in an ADD-friendly manner, and if you don't like one of his arguments against software patents, he has ten more for you to try out. For me, he made the injustice in software patents salient, and by the end of the book I wanted to find a machine to rage against—or to at least send my copy of the book to my Congressman. In fact, on the Brookings Institution website, Klemens suggests political action, because Congress has patent reforms in process that won't fix software patents without a push from the rest of us. Hopefully, this book will be a step in the right direction.


You can purchase Math You Can't Use: Patents, Copyright and Software from bn.com. Slashdot welcomes readers' book reviews -- to see your own review here, read the book review guidelines, then visit the submission page.
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An Argument Against Software Patents

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  • Huh? (Score:3, Funny)

    by XanC ( 644172 ) on Monday October 30, 2006 @03:11PM (#16646113)

    Roughly 90% of web content consists of discussions of software patents...

    Do you mean 90% of software patent discussions happen on the Web? I'd believe that a lot more easily.

    • by udderly ( 890305 ) *
      Somebody pulled that stat out of their rectum. That is simply not possible.

      90% of web content being pr0n would be more believable.

      I can't flippin' believe it--Firefox 2.0 did not show "pr0n" as being a misspelling, even though it did show "Firefox" as an error. Unbelievable!
      • Firefox doesn't show any words with a number in them as misspelled.

        Also, it does not show Firefox as an error. It shows firefox as an error.
        • by udderly ( 890305 ) *
          Thanks for the info on the numbers thing.

          Also, it does not show Firefox as an error. It shows firefox as an error.

          Actually on mine it shows both "Firefox" and "firefox" as errors. But if it were to be correct, it would only show "firefox" as an error, since it is a proper noun and *should* be capitalized. For instance, FF shows "venice" as a misspelling and "Venice" as correct.
        • by udderly ( 890305 ) *
          FYI, also "pron" is not a misspelling, but "prOn" is. Other than the obvious colloquialism, there is no word "pron" in the dictionary that I can find.
    • by MobyDisk ( 75490 )
      That has to be an editorial mistake.

      10 million hits on "Software Patents" [google.com]
      132 million hits on "porn" [google.com]
      Note that this does not consider the vast amounts of software patent porn.
    • No, he's suffering from Slashdot Blindness, which also tells him that no one would ever buy a music player that doesn't support Ogg Vorbis, because every single person on the Internet uses it exclusively.
    • Re: (Score:3, Informative)

      Verbal irony, I think.
    • Whoosh, n. The sound of a joke going right over your head.
      • Re: (Score:3, Interesting)

        by Trogre ( 513942 )
        Oh good - someone who gets the joke. Could you kindly explain it for the rest of us?

        thanks,

        • Oh good - someone who gets the joke. Could you kindly explain it for the rest of us?


          Seriously? It's called hyperbole, a figure of speech in which exaggeration is used for emphasis or effect, as in I could sleep for a year. Of course 90% of the Internet is not taken up by discussions of software patents; his point is it is a popular topic of discussion on the Internet.

          Or did I just feed the troll?
          • Re: (Score:2, Insightful)

            by k8to ( 9046 )
            Hyperbole goes over better with a larger sledgehammer: "Roughly 9000% of internet discussion is about software patents" or whatever. I'm sure you could improve on my bad first take. The "article" combines an even worse attempt with a lack of framing context to create a sense of rant or jokey flavor, or amusement.

            It fell flat enough that I spent a while trying to figure out if there was some crazy argument about the hugeness of patent databases or something. I think calling it a "joke" is giving it praise
          • by Trogre ( 513942 )
            Oh, okay.

            I'd just figured it must have been a reference to some new in-joke propagating across /. like "in a row?" or AOL user 17556639.

            Seriously I don't think the GGP post was silly for missing the "joke" when the original phrase was nothing but hyperbole, and rather lame hyperbole at that.

    • Roughly 90% of web content consists of discussions of software patents...

      Do you mean 90% of software patent discussions happen on the Web? I'd believe that a lot more easily.

      I spend time here because I have always assumed /. readers and posters to be somewhat brighter than the general population. Based on the replies to the PP, I really hope this previous assumption was wrong. Do none of you folks recognise the use of hyperbole to make a point?

  • WTF? (Score:1, Redundant)

    by Beuno ( 740018 )
    Roughly 90% of web content consists of discussions of software patents

    What internets are you using?
  • Thats what I would mod the summary of this post. The /. editors trying to be funny?
  • by Anonymous Coward on Monday October 30, 2006 @03:18PM (#16646257)
    They're great as long as we don't have them here in Europe. I just love getting up every morning wondering what stupid US software or business method patent I'm going to infringe today. Enjoy your litigation suckers!
  • Roughly 90% of web content consists of discussions of software patents.

    Roughly 90% of web content are porn or porn related is more believable.

    • by teslar ( 706653 )
      Perhaps the author doesn't know about porn? So his statement is based on the 0.1% of internet content he is aware of... evidence: 90% of 0.1% does sound about right for discussions of software patents :)
    • Roughly 90% of web content consists of discussions of software patents.

      Roughly 90% of web content are porn or porn related is more believable.

      Well, I for one think software patents are pretty obscene.

    • "discussions of software patents" must be some kind of new-fangled euphanism for "Porn"

      It makes the review and book much more entertaining if you replace all occurances of "software patents" with "porn" and all closed source vendor names with "midgets".

      -Rick
  • Looks like someone forgot to factor in all the porn on the web in that 90%.
  • "Roughly 90% of web content consists of discussions of software patents" - so all this time I thought I was browsing blogs, news stories, gaming sites, and tech articles I was really just learning about software patents? And I always thought that 90% of the web was made up of porn and spam ...
  • by BeeBeard ( 999187 ) on Monday October 30, 2006 @03:29PM (#16646435)
    I wholeheartedly discourage you to read Mr. Klemens' book and instead encourage you to rely on, for example, some kind of electronic forum where widespread misunderstanding and disinformation about intellectual property law runs rampant. If only such a thing actually existed, it would mean more work for lawyers. Oh well.
  • ...is that 90% of the Internets is composed of /.-ers pretending to know what they're talking about and propping up their assertions with bogus statistics in an attempt to out-FUD Microsoft while promoting FOSS and Web 2.0 via ponies and tubes. Or something.
  • "Roughly 90% of web content consists of discussions of software patents, so it's a little surprising that Ben Klemens has written what may be the first dead-trees book analyzing their validity...

    When a review or article begins with a statement that is so absurdly incorrect, it makes me wonder how factual or researched the rest of the review can be. One can only hope that the Author meant to say that 90% of discussions over copyright are related to the web or occur on the web. Otherwise, I would take the

  • by rumblin'rabbit ( 711865 ) on Monday October 30, 2006 @03:32PM (#16646473) Journal

    The simple question "what is a software patent?" is suprizingly difficult.

    For example, if you were to design a new carburator, there's an excellent chance that software would be a key component in its preferred embodiment. If so, does this disallow a patent? And if so, does that mean replacing any component in a patented invention with software protect you from allegations of patent violation?

    But what about inventions that are pure computing? Well, patented inventions that only involve computing are rarer, because pure computing doesn't actually do much good. That's just moving electrons around. There generally are real-world components and ramifications to the thing - otherwise, why bother? Even the infamous one-click shopping patent involves the exchange of money for goods - thus software is only a one part of it.

    I would think a bullet-proof definition of software patents is needed before they can be forbidden.

    • I would think a bullet-proof definition of software patents is needed before they can be forbidden.

      Well put. Processes (and methods) have always been patentable in the U.S (see 35 U.S.C. 101). A good example is Charles Goodyear's 1844 patent on his vulcanization process, which recites a series of steps for making rubber. Today's pioneering processes (nanotechnology, biotech, etc.) all rely to some extent on computer-controlled processes (and thus computer programs), which would be excluded from patentin

      • The line 'controled by software to ...' doesn't make a software patent. It properly describes a device/invention. Describing an algorythm or programic concept and declaring it an 'invention' makes it a software patent.
        The original case that started the software patent issue was a rubber company that embedded a series of sensors in the mold to monitor the curing process. All the data was dumped into a computer which popped the part out at the optimum time. Other than the use of the computer to monitor &
    • Even the infamous one-click shopping patent involves the exchange of money for goods - thus software is only a one part of it.

      And the rest of it is a business process, not a technical process. Business processes weren't supposed to be patentable, either. Business process patents and software patents tend to go hand-in-hand, IMHO.

    • For example, if you were to design a new carburator, there's an excellent chance that software would be a key component in its preferred embodiment. If so, does this disallow a patent? And if so, does that mean replacing any component in a patented invention with software protect you from allegations of patent violation?

      Isn't this like saying that because you designed something that includes a clock in its design, it is not patentable because you don't (or can't) have the patent on the clock? Because one

      • In the case of your carburator, you could certainly patent a new carburator design that happened to include software. What you can't patent is the idea of using software in a carburator.

        Agreed on both counts. But here's a third question: Could you patent the software without reference to the carburator? Answer: No because software, in and of itself, is not useful. It has to be applied to some real world problem for it be useful, and thus patentable.

        So given that, what do people mean when they say "s

    • by Halo1 ( 136547 )

      The simple question "what is a software patent?" is suprizingly difficult.

      It's actually pretty easy to get a definition of "pure" software patents: any patent with either program product claims [ffii.org], or whose process claims can be reworded like one of those.

    • by radtea ( 464814 )
      For example, if you were to design a new carburator, there's an excellent chance that software would be a key component in its preferred embodiment. If so, does this disallow a patent?

      No, of course not. Why would you possibly think that it would?

      Simply because a component of an invention is not patentable is no bar to the patentability of the invention. Virtually every invention ever patented includes unpatentable components, like nuts and bolts.

      So I am completely baffled by your question. Why are you wo
      • No, of course not. Why would you possibly think that it would?

        I don't. I asked a question in order to point out the problems with forbidding software patents.

        Most "software patents" do not involve just stand-alone software. Even ignoring the computer, they involve externalities of some kind. As an example, a patent on a graphical rendering algorithm ultimately involves the displaying and viewing of the results.

        With a little creativity, software can almost always be presented as a component of the

    • by Dausha ( 546002 )
      "The simple question 'what is a software patent?' is suprizingly (sic) difficult."

      Not that difficult. It's not really a software patent. It's a patent on a business practice---software is incidental in the implementation of that business practice.

      I'd rather have had a JD write a book on Software Patents than a PhD.
      • by bit01 ( 644603 )

        I'd rather have had a JD write a book on Software Patents than a PhD.

        I'd rather have somebody who creates for a living write a book on software patents, rather than somebody with an extreme bias who attempts to profit from the creativity of others.

        ---

        The patent mafia: When all they've got is a hammer, everything looks like a nail.

    • Patents are a bad idea. All a patentable device is, is an embodiment of an idea. Software is just the idea without the embodiment. Getting rid of software patents is at least a start.

      As an example, I made a 24 hour clock that showed all the time zones at once. Really it was just a map of a hemisphere of the world (you can use the north if you mirror it), in place of the hour hand, on a 24 hour analog display. It occurred to me that this might be a patentable device. When I checked, I learned it was

    • by bit01 ( 644603 )

      I would think a bullet-proof definition of software patents is needed before they can be forbidden.

      I think a bullet-proof definition of patents is needed before they should be allowed.

      ---

      The patent mafia: When all they've got is a hammer, everything looks like a nail.

    • It your "innovation" can be split into two parts, one part of which is a data medium an the other part is an information processing device which does not infringe on the claimed patent, then the combination of the two is not liable for patent protection.

      An easier way would be to simply state that the content of a data carrier such as a dvd or a book can never consitute patent infringement, regardless of your claim.
    • The best definition of software patents that you can use to forbid them is:
      A temporary monopoly on the application of an idea in any field.

      Forbiding it would free up all the money lost in patent offices.
      If would free most IP lawyers to do something actually usefull

      It would force the health care and bio tech industry to actually do some research and invent something instead of organizing cushy oligopolies.
      It would free up the IT industry.

      Actually there would be NO downside.

      The large corporations are using th
  • Where the hell do they get this figure? What "content" are they talking about? Certainly not web content in general. If anything is a contender for "roughly 90%" of the content on the web, it's porn. Even 90% of Slashdot's content isn't about patents, and it's a big deal on here... Sheesh.
  • by Squarewav ( 241189 ) on Monday October 30, 2006 @03:41PM (#16646643)
    Is there someone out there going "Hmm, I don't know how I stand on software patents. I know I'll buy a book on why they are bad and one on why they are good!"

    Chances are someone who hates patents knows why they hate them, and doesn't need a book to tell them why. Someone who likes patents isn't going to buy it thats for sure. People that don't care ether way will probably find better things to read.

     
  • Al Gore has patented the power point presentation.
  • Anyone else find it ironic that 90% of the comments to this article are complaining about the first sentence in the summary?

    Welcome to /.
  • ...are made up on the spot.
  • by TLouden ( 677335 )
    Wow, and I thought it was porn.

    Seriously though, how the hell does one come up with a number like that. I've seen less than 10% myself.
    • by Aladrin ( 926209 )
      It is. I figure this guy overheard some office talk something like this:

      Bob: So, me and Patty were going through "software patents" on the internet in my office.
      Joe: They say it makes up 90% of the web conversations.
      Bob: Tell me about it. Patty and I have tons of material left to look at. Not that her own assets aren't something to like at, eh?

      And being the total freak that he is, didn't catch the drift.
  • ...the lawyer's market. Patent theory doesn't specify which market the size of which patents maximize!

    --Rob

  • I think so but not sure.

    If it is and you are reading this congrats on your book.
  • Someday this whole software patent/IP patent insanity is going to implode the galaxy- then if any of us are left, we will have to immigrate to a different galaxy to infest.

    Copyright should already cover what needs to be covered, but even that is too restricted to enable innovation and improvement.

    IP protection is what will eventually turn our world to the post apocolyptic scenario's.
    (trying to protect it will bring on the end)
  • ..Then it seems the calculator simply needs to be made easier to use so the typical user can use it to generate programs as they need or are inspired to. Like numerical calculators are used today.

    Is such a thing possible?

    absolutely... its called abstraction physics.

    Numbers and math are a subset or symptom of the application of abstraction physics.

    http://threeseas.net/abstraction_physics.html [threeseas.net]

    I'm tempted to buy the book just to see if he gets close or is pulling clever wool over users eyes.
  • First off, I have worked in a lot of startups and have seen first hand how patents work ... so let me explain. Unless it's a lawyer startup, most innovators and startups will get a patnet for one reason and one reason only. To hold off the lawsuits. Sometimes it gives investors a warm cozy feeling of "protection", sometimes it gets us in good on a cross licensing agreement so we avoid even more lawsuits, but the number one reason is really lawsuits and that is all. While, in theory, you don't need to g

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